HKSAR v. CHOI SAU YIN, CALVIN

HCCC 158/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 158 OF 2016

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

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Background and the facts

This morning, the defendant pleaded guilty before me to one count of trafficking in a dangerous drug and admitted the prosecution’s Summary of Facts.

Briefly, on 10 December 2015, the police saw the defendant acting suspiciously in the vicinity of Tai Hing Estate, Tuen Mun. He was then stopped for a search. As a result, the police found a cigarette packet inside the defendant’s jacket pocket. Wrapped and contained inside the cigarette packet was the drug particularised in the count. That is a total of 13 grammes of a crystalline solid containing 12.7 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.

The defendant was arrested and, under caution, he told the police that he just wanted to earn some money for meals.

Subsequently, in a video-recorded interview, the defendant said that he had no job and no income at the time. He also told the police that he had no current habit of taking drugs although his urine sample taken on 12 December 2015 was later tested positive for ‘Ice’.

The defendant’s background and mitigation

The defendant is aged 30 and is married. He was educated up to Secondary 1 level. At the time of his arrest, the defendant was unemployed. The defendant has got 12 previous criminal convictions including six robbery convictions, one theft conviction, two obtaining services by deception convictions, one AOABH conviction and two others.

In mitigation, Mr Mak for the defendant submitted that the defendant is now truly remorseful. A letter written by the defendant was handed up to the court in which the defendant expressed his remorse and his determination to turn over a new leaf. Mr Mak also told the court that the defendant had been making charitable donations to different organisations and that he has also signed up for organ donation as well.

Further, Mr Mak urged this court to accept that part of the ‘Ice’ was for the defendant’s own consumption as it is evident that he was an ‘Ice’ addict. Mr Mak also submitted that the money for the purchase of ‘Ice’ did not come from the defendant himself but rather from his mother and wife who would give him HK$5,000 to HK$6,000 per month for his use and to feed his drug habit.

Having heard Mr Mak’s initial submissions on this, I indicated to him that, at that time, I was not inclined to accept the defendant’s claim that any significant part of the ‘Ice’ in question was for his own consumption. I asked Mr Mak if he would further substantiate the defendant’s claim. In reply, Mr Mak told the court that the defendant was not prepared to give evidence on this.

Sentencing considerations

Firstly, concerning the defendant’s claim that part of the ‘Ice’ was for his own consumption, my observations are these.

(1) Under caution, the defendant immediately replied that he just wanted to earn some money for meals. There was no mentioning whatsoever of his having part or all of the drug for self-consumption. Such a response is indicative of his true intention, that is, he was merely carrying the drug for delivery to others in order to earn some money. In fact, when the defendant was later interviewed by way of video recording, he even said that he was not a drug addict although his urine test later revealed a positive result for ‘Ice’.

(2) The defendant was unemployed at the time and he only had $1.60 and renminbi $1 with him at the time of his arrest. Given his very limited financial resources, it is unrealistic to suggest that he had any significant amount of the ‘Ice’ seized for his own consumption. In saying this, I have already taken into account the claim that the money for the purchase of drug came from the defendant’s mother and wife. But be that as it may, he was found almost penniless when he was stopped with the ‘Ice’ found on his person.

(3) The drug in question was wrapped in one resealable plastic bag. If the bag was for delivery to others, it is unimaginable how the defendant would somehow open the bag midway through and later extract part of the drug from the bag and keep it for his own consumption.

(4) There was a total of 13-something grammes of ‘Ice’ seized. The Admitted Facts state that a normal single dosage of ‘Ice’ is only between 10 and 14 milligrammes and that a dosage of 1 gramme or more would be fatal. In other words, the ‘Ice’ found by the police on the defendant’s person far exceeded any normal dosage, and given that the defendant was unemployed at the time, I do not accept that he would have any significant amount of the ‘Ice’ he carried on the day in question for his consumption.

(5) When the defendant was stopped, he was seen walking from Kin San Estate to Tai Hing Estate, that is away from the estate where he lived, to another place. If it be that he had part of the drug in question for his own consumption, one would expect him to have left that part at his home premises for later consumption rather than carrying it around in the public streets where there was a higher risk of the drug being found when stopped by the police.

When all these matters are considered, I completely reject that any significant amount of the ‘Ice’ found was for the defendant’s own consumption. I should also say that although the defendant’s urine test showed a positive result for ‘Ice’ on 12 December 2015, and even treating him as a drug addict, that alone does not help answering the question as to whether the defendant had a significant amount of the ‘Ice’ seized for his consumption. At the end of the day, all the relevant factors have to be considered.

In any event, even if it might be that the defendant would have a small amount of the ‘Ice’ for himself, no doubt, possession of a dangerous drug itself carries with it a term of imprisonment. Therefore, in this case, I do not consider this self-consumption claim would meaningfully or materially affect the sentence and I do not see any basis for reduction because of this claim. See HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69 and HKSAR v Liu Ming Sze [2017] 1 HKLRD 297.

The revised tariffs for trafficking in ‘Ice’ were laid down in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For trafficking between 10 and 70 grammes of ‘Ice’, the revised term is one of 7 to 11 years’ imprisonment for this band. Having considered the amount of ‘Ice’ involved and the facts of this case, I am going to adopt a starting point of 7 years and 3 months. That is a total of 87 months.

The defendant pleaded guilty and he would receive a one-third reduction in sentence. Other than this, there is nothing which would warrant any further reduction in sentence. Eighty-seven months reduced by one-third is 58 months’ imprisonment.

Therefore, I order that the defendant is to serve a term of 58 months.