HKSAR v. CHUI TAK MAN

HCCC322/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 322 OF 2012

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant, Chui Tak-man, was charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The Summary of Facts

When the defendant arrived at the Lo Wu border from the mainland, he was intercepted by Customs & Excise officers for a search. Two packets of suspected dangerous drugs were found wrapped around his waist, under his clothing. Subsequent analysis confirmed the two packets to be the following:

(1) a packet containing two packets containing a total of 43.82 grammes of a crystalline solid containing 43.28 grammes of methamphetamine hydrochloride; and

(2) another packet containing 47.48 grammes of a solid containing 38.39 grammes of cocaine.

The "Ice" and cocaine were estimated to be worth HK$35,275 and HK$53,320 respectively.

The defendant was arrested for the offence of trafficking in a dangerous drug. Under caution, the defendant admitted that he knew those were ‘coke’, that is cocaine.

The defendant attended a video-recorded interview later. He claimed the "Ice" and cocaine were for his own consumption. He claimed to have taken drugs for about 10 years and he took 1½ grammes each day. He said he used to buy $50 worth of drug each time. He purchased the seized drugs from someone in Shenzhen. He was living in the mainland at that time.

Travel records show that the defendant departed Hong Kong on 1 February and returned later on the same day. The defendant admitted that he had the dangerous drugs in his possession for the purpose of unlawful trafficking.

The Background and Mitigation

The defendant is now 37 years of age. He is not a man of clear record, having a total of 13 criminal convictions prior to this offence. The most recent one was a similar offence of trafficking in a dangerous drug for which he was sentenced to 5 years’ imprisonment in 2008. This is not the only drug-related offence either. He was convicted of four counts of possession of dangerous drugs before. Apart from the drug-related offences, he was also convicted of two counts of common assault, two counts of claiming to be a member of a triad society and four counts of theft.

The defendant was born in Hong Kong, is still single. He claimed to have been addicted to "Ice" since year 2000. At the time of the offence, he was unemployed but doing casual jobs to help provide for the four children of his younger sister who was in gaol for a drug-related offence. I was informed that the defendant was promised $4,000 to deliver the drugs in this case but had not received the pay.

Mr Chau Hing-pang, counsel for the defendant, has very helpfully prepared a written skeleton submission on the quantum of sentence, together with relevant authorities, for my consideration.

In short, Mr Chau submitted that the proper way to deal with the trafficking of these two drugs is to work out a starting point on the basis of combined quantities. He submitted that a starting point in the region of 9 to 10½ years would be appropriate before taking into account the aggravating factors, that is importation from the mainland and committing the present offence within half a year of release from prison for the same offence.

Trafficking in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of $5 million and to imprisonment for life. This case involves the trafficking of cocaine and "Ice". The Court of Appeal has set down guidelines for the trafficking of "Ice" and cocaine. With reference to the quantity involved in this case, the guidelines are as follows:

(a) For "Ice", 43.28 grammes, the range is 7 to 10 years. That is the case of AG v. Ching Kwok Hung [1991] 2 HKLR 125, giving the guideline for 10 to 70 grammes.

(b) For cocaine, 38.39 grammes, the range is 5 to 8 years. That is the case of AG v. Pedro Nel Rojas [1994] 2 HKCLR 69, adopting the guidelines in R v. Lau Tak Ming [1990] 2 HKLR 370 for the trafficking of 10 to 50 grammes.

The "Ice" and cocaine in this case were found in separate packets. I have to decide whether to adopt an “individual approach”, where an appropriate starting point is determined for each type of dangerous drug and they were then combined into an overall starting point, or a “combined approach” where a sentence for the most serious drug would be calculated before making an upward adjustment to take into account the significant quantity of the less serious drug. This is the case of HKSAR v. Yip Wai Yin and Anor [2004] 3 HKC 367 and the case of HKSAR v. Ko Ka Hing [2009] 4 HKLRD 856.

The court said, in the case of Ko Ka Hing, as a rule of practice, where the sentencing brackets for the two types of drugs are not dissimilar, it is appropriate to adopt the “combined approach”. Moreover, the “combined approach” is often the correct one to enable the sentencing judge to sentence fairly, realistically and in a commonsense manner, and that is the case of HKSAR v. Cheung Kwok Leung, Lowence [2003] 3 HKLRD 542 and cited in Yip Wai Yin.

In the case of HKSAR v. Yip Pik Kwai [1999] 3 HKLRD 42, the defendant was convicted of trafficking "Ice" and heroin. The Court of Appeal confirmed that where separate parcels of dangerous drugs were found, the normal practice is to sentence the defendant on the total quantity rather than the individual amounts. The Court of Appeal further said that although both heroin and "Ice" attracted heavy sentences, the progression of the scale in respect of their respective guidelines were not the same.

The court then considered what the appropriate sentence would have been if the dangerous drugs had either all been heroin or had all been "Ice" and arrived at an appropriate starting point before reducing the sentence for plea.

This case is similar to that of Yip Pik Kwai, particularly when the sentencing guidelines for cocaine are the same as those for heroin. I am of the view that the same approach as adopted in Yip Pik Kwai should be adopted here.

The total amount of narcotics is 81.67 grammes. That is 43.28 grammes of "Ice" plus 38.39 grammes of cocaine. If the dangerous drugs had all been "Ice", bearing in mind the defendant is not a first offender and his most recent conviction was that of trafficking in a dangerous drug and that the offence had an international element in that the defendant brought dangerous drugs from the mainland into Hong Kong, I am of the view that the starting point would have been 11 years.

If the dangerous drugs had all been cocaine, with the same consideration of his previous convictions and the international element, the appropriate starting point would have been 9½ years.

Having considered these two notional starting points, I am of the view that a proper starting point for the "Ice" and cocaine involved in this case is one of 10½ years.

The defendant had pleaded guilty at the magistracy and is entitled to the full one-third discount. There is nothing in the defendant’s personal background to warrant any further reduction. As quite properly considered by Mr Chau, the defendant’s financial situation and the fact that he had not obtained a reward for the trafficking in the dangerous drugs are not mitigating factors.

So for the present offence, the trafficking in dangerous drugs, the defendant is sentenced to a term of imprisonment for 7 years.