HKSAR v. CHAN HING TUNG

HCCC 17/2024

[2024] HKCFI 1853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 17 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of trafficking in a dangerous drug before Magistrate Mr. Tsang Chung-yiu and was committed to the Court of First Instance for sentence. The defendant had confirmed his plea before me.

2.  Particulars of the charge are that the defendant on 11 August 2022, outside Hiu Kwai House, Kwai Chung Estate, Sheung Kok Street, Kwai Chung, unlawfully trafficked in a dangerous drug, namely 109.61 grammes of a crystalline solid containing 107.99 grammes of methamphetamine hydrochloride (commonly referred to as ‘ice’).

SUMMARY OF FACTS

3.  The defendant was intercepted by plainclothes police officers at around 10:25am on the charge date at the charge address, carrying a black handbag.

4.  Upon search, multiple plastic bags with markings of “X08”, “X9”, “N5”, “Y9” or “X9” were found inside the handbag, together they contained all the dangerous drugs the defendant is now being charged with.

5.  The estimated street value of the drugs seized was about $64,451.

6.  The defendant admitted and accepted through the summary of facts that he unlawfully trafficked in all the dangerous drugs seized.

PREVIOUS CONVICTIONS

7.  The defendant had been in court on 5 previous occasions, with a total of 10 convictions.  The first was in 2013 when he was 17, for 2 charges of unlawful sexual intercourse with a girl under 16.  He was put on probation, which he breached, resulting in a period of detention in the Detention Centre.

8.  When he was 19, he was convicted of one charge of using a false instrument and was sentenced to another period of detention in the Detention Centre.

9.  When he was 25, on 16 February 2021, he was convicted of taking conveyance without authority, driving without a licence, and using a motor vehicle against third party risks, and was sentenced to a total of 6 months’ imprisonment.

10.  In the same year, on 10 December 2021, he was convicted of dangerous driving, driving whilst disqualified, using a motor vehicle against third party risks, and obstructing a police officer in the due execution of his duty.  He was sentenced to a total of 10 months’ imprisonment.

11.  He was last released from imprisonment on 21 January 2022, which was 7 months before his commission of the present offence.

BACKGROUND AND MITIGATION

12.  The defendant was born in mainland China in 1996 and is now 28 years old. He arrived in Hong Kong from mainland China in 1999 and lived in a public housing unit with his mother.  He received education up to Form 3 level.

13.  The defendant previously worked as a bartender, only becoming unemployed in 2022.  Before his arrest, he did some casual work and was earning around $10,000 per month.

14.  The defendant wrote in mitigation about how he had found Christianity whilst in remand, which urges him to contribute positively to society.  He committed the present offence whilst under immense financial pressure as a result of losing his job during the pandemic.  He has since reflected on his wrongdoing and is truly remorseful.  He is grateful for his girlfriend’s continued support and they plan to have a future together.  The defendant promises not to cause his mother anymore worries.  He wishes to reunite with his family and fulfill his duties as a son and asks for a lenient sentence.

15.  The defendant’s mother also wrote to tell the court how her son had quit his job to look after her for over half a year after her surgery.  She believes the defendant has learned his lesson and will turn a new leaf and contribute to society.  She wishes to be reunited with him as soon as possible and seeks a lenient sentence for him.

SENTENCE

16.  The maximum sentence on conviction upon indictment for the offence is that of life imprisonment and a fine of $5 million.

APPLYING HERRY JANE YUSUPH

17.   The guidelines and 6-step approach as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[1]are applied as follows.

Step 1: The applicable guideline tariff bands

18.  For 107.99g of ‘ice’, the applicable guideline tariff band is that of 11 to 15 years’ imprisonment.

Step 2: The defendant’s role and culpability

19.  I find that the only reasonable inference that can be drawn upon the facts admitted by the defendant is that he was in possession of the dangerous drugs as a courier, and he is to be sentenced as such.

Step 3: The relevant band within the guidelines

20.  Based on my finding of the defendant’s role and culpability, I adopt a starting point of 11 years and 8 months, which is the arithmetical starting point for a courier.

Step 4: Aggravating factors

21.  Based on the defendant’s conviction records, and the fact that he committed the present offence just 7 months after his discharge from prison on 21 January 2022, I find that he is a habitual offender, and that his sentence should be enhanced by 4 months for this aggravating factor.

22.  The enhanced sentence is 12 years.

Step 5: Mitigating factors

23.  Apart from his plea of guilty, there are no mitigating factors that would justify a reduction in sentence.

Step 6: Totality

24.  From the perspective of the totality sentencing principle, I find that a sentence of 12 year’s imprisonment in the circumstances is a fair, just and balanced sentence.

FINAL SENTENCE

25.  The sentence after granting the defendant the full one-third discount for his timely guilty plea is, therefore, 8 years’ imprisonment.