HKSAR v. CHUM CHI YIN

DCCC 797/2024

[2025] HKDC 1020

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 797 OF 2024

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REASONS FOR SENTENCE

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1.  Mr Chum pleaded guilty before me to 3 charges on a Charge Sheet as follows.

2.  Charge 1 is Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on 18 October 2023, outside No 214 Fuk Wing Street, Sham Shui Po, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 7.94 grammes of a mixture containing 6.44 grammes of heroin hydrochloride.

3.  Charge 2 is Assaulting police officers in the due execution of their duties, contrary to section 36(b)  of the Offences against the Person Ordinance, Cap 212.  Particulars are that he, on the same date, at the same place, in Hong Kong, assaulted Police Constable 27649 and Woman Police Constable 35091, police officers of the Hong Kong Police Force, in the due execution of their duties.

4.  Charge 3 is Failure to comply with requirement to produce proof of identity for inspection, contrary to section 49(1)  of the Public Order Ordinance, Cap 245.  Particulars are that he, on the same date, at the same place, in Hong Kong, failed to produce proof of his identity for inspection upon being required so to do by a police officer, namely, Police Constable 27649.

Facts admitted by Mr Chum

5.  On 18 October 2023, at about 4:16 am, Mr Chum was walking furtively in Sham Shui Po, Kowloon, and he was turning right from Camp Street to Fuk Wing Street.  Patrolling uniformed police stopped him outside No 214 Fuk Wing Street for inquiry.

6.  PC27649 (PW2)  asked Mr Chum to produce his HKID card.  Mr Chum replied he forgot to bring it (Charge 3).

7.  PW2 started a body search on Mr Chum.  When the left trouser pocket was being searched, Mr Chum resisted and took out from the pocket a transparent resealable plastic bag containing 6 plastic bags containing a total of 23 packets containing 7.94 grammes of a mixture containing 6.44 grammes of heroin hydrochloride (“the drugs”)(Charge 1).

8.  PW2 held Mr Chum’s left hand.  Mr Chum punched PW2’s abdomen, and pushed another officer WPC35091 (PW1)  onto the ground.  Mr Chum threw the drugs onto the ground.  PW1 and PW2 subdued Mr Chum; but he kept hitting PW1 and PW2 with his legs and elbows (Charge 2).

9.  Mr Chum was arrested.  On Mr Chum were found two mobile phones and 4 SIM cards.  No cash was found on Mr Chum.

10.  Nothing incriminating was found during the search of Mr Chum’s residence in Shek Kip Mei Estate which was about 650 metres from the scene.

11.  During subsequent written records of interview and a VRI, Mr Chum stated the following:

(a)  He resided in Shek Kip Mei Estate, Sham Shui Po;

(b)  Shortly before interception, he was returning home from his work place in Camp Street and he met a friend called “Ar Ming” in the same street co-incidentally;

(c)  He paid “Ar Ming” $2,400 for the drugs which were purchased for self-consumption;

(d)  He was intercepted by the police on his way home;

(e)  He threw the drugs onto the ground, punched PW2’s abdomen and pushed PW1; he did all that because he was scared and wanted to flee as drugs were on his body and he had two outstanding court cases and was placed on the wanted list;

(f)  He did not have the full name, HKID card number, not the phone number of “Ar Ming”;

(g)  He had a habit of consuming heroin and consumed around 1 gramme (ie 4 tablets)  per day; and

(h)  He thought he left his HKID card at home but it might have been lost.

12.  In the incident, PW1 suffered from tenderness, bruise and mild swelling over her right elbow and right knee.  There was also mild tenderness over her right wrist, left knee and right back.  Her diagnosis was right wrist sprain and contusions on her knees.  She was granted 4 days’ sick leave.

13.  In the incident, PW2 received a scratch mark on his right wrist, and sustained an abrasion wound on his right knee.  His diagnosis was right wrist and right knee abrasions as well as low back pain.  He was granted 4 days’ sick leave.

14.  On 3 November 2023, PW2 underwent an MRI scan due to his prolonged sprain back pain.  The result was he had mild lumbar spondylosis.  Due to this condition, he suffered a permanent loss of earning capacity to the extent of 2.5%; and he was transferred to doing indoor administrative tasks as he could no longer perform his original duties.

15.  The estimated retail price of the drugs in the case amounted to about $6,304.

Criminal record

16.  Mr Chum has 54 previous convictions, including 7 relating to dangerous drug etc possession and 3 relating to assault.

Antecedents

17.  Mr Chum is aged 45 (43 at the time of the offences), educated to F1 level, had been a dock worker.  Mr Chum is unmarried and lived in public housing in Shek Kip Mei.

Mitigation

18.  Mr Peter KC Wong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chum.  The following is a summary of the mitigation submissions.

19.  Mr Chum completed only F1 education.  At the age of 15, he started to take up different odd jobs.  He had previously worked as a mason earning $15,000 a month.  During Covid, he became jobless and relied on his savings for livelihood.  After Covid until arrest, Mr Chum took up unsteady odd jobs including being a mason and a dock worker for a daily rate of $800.

20.  Mr Chum has been a drug addict since he was 16.  He has criminal records, including possession of dangerous drugs (in 1996, 1998, 2001, 2008, 2009 and 2014)  and assault occasioning actual bodily harm (in 2006 and 2016). Mr Chum was sentenced to 32 months’ imprisonment in November 2024 for the offence of a non-domestic burglary in DCCC 9/2024.  The expected date of release is 29 July 2025.

Charge 1

21.  In R v Lau Tak Ming [1990] 2 HKLR 370, 387, the Court of Appeal held that for trafficking in up to 10 grammes of heroin, the sentence shall be between 2 and 5 years.

22.  In the more recent Court of Appeal case of HKSAR v Huang Ruifang, CACC 106/2022 [2025] HKCA 234, at pp 30-31, new guidelines have been laid down on various types of dangerous drug.  Nevertheless, the sentencing guideline with regard to trafficking in up to 10 grammes of heroin remains at 2 to 5 years (see para 62(i))

23.  For a claim of self-consumption, the case of HKSAR v Cheung Wai Man [2019] 1 HKLRD 817, 830 at paras 53-54 comes into play.  The range of self-consumption discounts was between 10 and 25%.  In order to succeed, it must be established to the court’s satisfaction that a significant proportion of the drug was for the offender’s own consumption.

24.  In HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, 701, at para 27, it was stated that the average daily consumption of a regular user of heroin was in the range of 0.25 to 0.7 gramme.

25.  At the time of the commission of the offences, Mr Chum was out of a job (cf what Mr Chum said under caution ie that he was returning home from his workplace).  Looking at the addiction history of Mr Chum, it is plausible that he had to consume substantial amount of heroin each day.  His claim that he consumed up to 1 gramme of heroin is believable.

26.  Upon enquiry by the court, Mr Wong submitted that a majority of the drug seized was for self-consumption; only a minority was for trafficking.

Charge 2

27.  There is no sentencing tariff for the offence of assaulting police officer in the due execution of duty.  The maximum sentence is 2 years’ imprisonment.

28.  It has been stressed by the court of Hong Kong on many occasions that assaulting a police officer is a serious offence and the sentence should be deterrent.

29.  It was admitted that Mr Chum has previous similar records of violence, which is an aggravating factor for sentence.  Nevertheless, it was submitted that they took place many years ago.

30.  PW1’s injuries can be described as relatively mild.  PW2’s injuries though more serious than those of PW1, are not so serious that affect the day-to-day living of PW2.

31.  The offence of assaulting police officers was committed while the offence subject of Charge 1 was committed.  It was submitted that the sentence for the two offences can be ordered to run partially concurrently.

Charge 3

32.  Under section 49(2)  of the Public Order Ordinance, Cap 245, the maximum penalty is a fine at level 3 ($10,000)  and imprisonment for 6 months.

33.  The appropriate sentence for Charge 3 should be a fine.

34.  Given Mr Chum’s early plea of guilty, a 1/3 discount shall be given to him in respect of all the sentences.

35.  Upon enquiry by the court as to whether Mr Chum was willing to substantiate his claim of self-consumption by giving evidence, Mr Wong after taking instructions replied that Mr Chum was willing to do so.

36.  Upon enquiry by the court, Mr Wong asked that a small proportion of Mr Chum’s existing sentence be made concurrent to the sentences to be imposed herein.

Summary of Mr Chum’s evidence

37.  Mr Chum gave evidence to the following effect.  Prior to arrest, he took up odd jobs including being a mason and dock worker at a daily wage of $800. In the week prior to arrest, he worked 5 such jobs earning a total of $4,000. His first DD possession conviction in December 1996 related to heroin.  His last DD possession conviction was in September 2014.  He had been a drug addict all along.  At and prior to the time of the present arrest, he still consumed heroin.  Rate of his consumption was about 1 gramme ie 4 tablets costing $800 per day.

38.  In the present case, he bought the heroin seized for about $2,400. Majority was intended for self-consumption; some of it will be transferred to others.

39.  When asked how much was intended for reselling, Mr Chum replied ½ of it.

40.  After his arrest, when he felt the urge, he asked the police to take him to take Methadone.  After he was sent to Lai Chi Kok Reception Centre, he waited in the hospital in Lai Chi Kok till he was rid of the addiction.  Police did take him to take Methadone each night while he was in police custody.

41.  Under cross-examination, Mr Chum said he consumed heroin lately by inhaling it using tinfoil and lighter.  He agreed that no drug-related paraphernalia were found at his home.  He explained that they would be thrown away after each DD consumption.

42.  Mr Chum said the seller sold the drug to him at a premium discount.

43.  Although it was difficult to get a stable odd job, it was not difficult to obtain different odd jobs.

44.  When asked to explain why he would still traffic in drug if he was able to obtain different odd jobs, Mr Chum suddenly said that he had made a promise to sell.  He elaborated by saying he took drug with a friend.  When Mr Chum had money, he would buy drug, use half himself and gave the other half to his friend for the latter’s use.  When Mr Chum did not have money, his friend would do the same in reciprocity.

45.  Under re-examination, Mr Chum reiterated that it was not difficult to find odd jobs prior to arrest.  He also said if his friend did not require drug, he (Mr Chum)  would use all of the drug by himself.

Sentence

46.  The court has seen the photographs contained in a photo album submitted by the prosecution.

47.  I have considered the evidence of Mr Chum.  I consider him a wholly unbelievable witness.  He started off in chief by saying the majority of the drug was for self-consumption.  Then he retracted his position somewhat by saying half of it was for self-consumption and the other half for reselling. Under cross-examination, when asked why he would traffic in drug if he was able to find odd jobs to finance his drug addiction, he suddenly changed his version completely by saying that he gave half of it to his drug-using friend as part of a reciprocal arrangement.  I reject his evidence completely.

48.  I have looked into the admitted facts and Mr Chum’s background to see whether there was any evidence that any part of the drug was for his self-consumption.  His drug possession conviction was a long time ago.  He had no cash on his person.  His home was clear of drugs.  There is no evidence that he was still a user of heroin save and except one other sentence under caution that “he had a habit of consuming heroin and consumed around 1 gramme (ie 4 tablets)  per day”.

49.  However, that sentence was uttered in the context of claiming under caution that all of the drug was purchased for self-consumption, which claim has been refuted.  To the extent that the claim of self-consumption and the rate of consumption are exculpatory in nature under a charge of trafficking, I reject them in entirety by refusing to give them any weight.

50.  To the extent that Mr Chum might be a user of heroin at the time of the offences, there is no evidence even to the lower standard of proof of what the proportion might be of the dug seized that was intended for his own use. Consequently, under Charge 1, I refuse to give him any sentencing discount on the basis of self-consumption.

51.  Mr Chum committed the present offences whilst on and jumping police bail: ST RN 19021290 refers.  This is an aggravating factor.

52.  Although Mr Chum has a bad criminal record for drug-related possession (not trafficking)  offences and assault offences, they are rather aged.  I shall not hold them against Mr Chum.

53.  On Charge 1, following the sentencing guidelines, I adopt a starting point of 47 months’ imprisonment, this being the arithmetic starting point.

54.  In line with the six-step approach set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, I need to classify Mr Chum’s role and culpability in the trafficking activity.

55.  There was no evidence to suggest that he was other than a mere courier. I shall regard him as such.

56.  He committed the trafficking offence (indeed all the offences herein)  whilst he was on (and jumping)  bail.  For this reason, I shall add 4 months to his starting point to reach a notional sentence after trial of 51 months’ imprisonment.

57.  In relation to Charge 2, I have regard to the fact that not one, but two officers have been assaulted and both sustained injuries.  PW2’s injuries are more serious and to the extent of a permanent loss of earning capacity of 2.5% caused by prolonged back pain (diagnosed as mild lumbar spondylosis).  I am of the view a starting point of 15 months’ imprisonment fits the offence and its circumstances: Secretary for Justice v Ko Wai Kit [2001] 3 HKLRD 751 considered.  The aggravating factor relating to bail has already been taken into account when considering the sentence for Charge 1.  In order to avoid double-counting, it will be ignored here.

58.  Regarding Charge 3, the maximum penalty for the offence of failure to produce proof of identity for inspection is a fine of $10,000 and imprisonment for 6 months.

59.  I do not favour a fine because that will place more financial hardship on Mr Chum possibly pushing him to commit more crimes in the future.  I will adopt a starting point of 1 ½ months’ imprisonment in his case.  Again, for the same reason, the bail-related aggravating factor will be ignored here.

60.  Mr Chum pleaded guilty in good time earning for himself the customary 1/3 sentencing discount.  There are no other mitigating factors of weight that I can see which will have the effect of reducing his sentences further.

61.  Although the three offences were committed at the same place and at about the same time, they were separate and distinct offences.  One was not concomitant to any of the others.  In principle, they ought to attract consecutive sentences, subject only to totality[1] which incidentally is also the last step in the Herry Jane Yusuph approach for sentencing a drug trafficker.

62.  Having weighed everything in the round, I consider a global starting point of 5 years’ imprisonment to be appropriate.  I am satisfied that the sentence arrived at after applying the 1/3 sentencing discount is fair, just and balanced having regard to the overall circumstances of the offences and the offender.

(Mr Chum, please stand)

63.  For Charge 1, the sentence is 34 months’ imprisonment.

64.  For Charge 2, the sentence is 10 months’ imprisonment.

65.  For Charge 3, the sentence is one month’s imprisonment.

66.  I order that the sentences on Charges 2 and 3 are to run concurrently with each other, and to run consecutively to the sentence on Charge 1 to the extent of 6 months.  The final aggregate sentence for Mr Chum in this case is therefore 40 months’ imprisonment.

67.  Mr Chum is currently serving a 32 months’ prison term imposed on 28 November 2024 for a burglary offence he committed in 2019: DCCC 9/2024 [2024] HKDC 2041 refers.  He was sentenced late because he jumped bail (see above). His expected date of release is 29 July 2025.  That burglary offence has nothing to do with the present offences.

68.  In the circumstances, I order that the sentence for Charge 1 herein shall commence at the expiration of the imprisonment sentence Mr Chum is currently undergoing: section 68 of the Criminal Procedure Ordinance, Cap 221, refers.

69.  I further order that the sentences for Charges 2 and 3 herein shall commence not earlier than at the expiration of the imprisonment sentence Mr Chum is currently undergoing, but at such time as will fit the consecutive sentence order that I have made relating to the sentences for these two charges vis-à-vis the sentence for Charge 1.