HKSAR v. CHEUNG CHOR YAN

HCCC128/2018

[2018] HKCFI 2076

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 128 OF 2018

-----------------

-----------------

--------------------------------------------

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

--------------------------------------------

COURT:

On 22 August 2017, Cheung Chor-yan, the accused herein was in the Wu King Playground at Wu King Road in the New Territories. The conduct attracted the attention of the police officers and she was intercepted for a search.

On search, the police found two resealable bags and each containing a crystalline solid. The accused was arrested and cautioned. She was also found in possession of about $1,400 in cash and two mobile phones each equipped with a SIM card.

She was taken to the police station and interviewed under caution, and the caution was video-recorded. In the course of that recording, she admitted that the crystalline solid seized by the police was hers. It was analysed by the government chemist and found to be 1,765 grammes of solid containing 21.7 grammes of methamphetamine hydrochloride, which is more commonly known as ‘Ice’.

The estimated street value of the drugs seized in this case is of the order of $721,000.

She now admits and accepts that she was in possession of dangerous drugs for the purpose of unlawful trafficking.

Indeed, on what I have heard today from the counsel for the accused, I have been told that she foolishly did a favour for a friend for no reward, and carried the drugs.

The accused came before a magistrate and on 16 April 2018, she pleaded guilty to a charge of trafficking in the drugs which had been seized from her. She was committed to the High Court for sentence.

The accused was born in Hong Kong in 1977. She is 40-year-old. She was educated to Form 3 level. Formally, she was employed as a bookkeeper in her father’s transportation business but marriage came along she ceased working. She is presently unemployed and in receipt of CSSA benefits since 2011 and that includes a disability allowance. The accused married in 2005, was divorced in 2013. She has a daughter with her former husband. That daughter is now aged 12. Prior to her arrest, she was living with her boyfriend in an estate in Tin Shui Wai and they have a 4-year-old daughter. I am informed that she is addicted to drugs.

The accused has a criminal record. The dominant component of that is a series of charges of theft, starting in 1999 and ending in 2015. She also has a conviction for possession of dangerous drugs in 2006. Perhaps significantly, the last two convictions for theft involved orders for detention in a drug addiction treatment centre. This is plainly consistent with her being addicted to drugs at the time of the offence. I am informed in that regard that she is not only an addict but has never herself dealt in dangerous drugs.

I have also three heartfelt mitigation letters. The letter from the accused herself expresses her deep remorse and her understandable anxiety in relation to her children and her family. Her mother’s letter, equally heartfelt, makes the perspicacious or pertinent point that she considers that in some ways, the accused is a naive and credulous and far too trusting person. And that, certainly fits with her description of how she came to make this terrible mistake of carrying this quantity of dangerous drugs. Last, but by no mean least, is a rather beautiful, albeit brief letter from her daughter.

She will face time in prison and the support of her family will be an important factor in her re-entering society. Hopefully she will be better equipped to contribute to that society.

The community of Hong Kong, and as a result, the courts of Hong Kong, have for many, many year taken a severe view of drug trafficking particularly in relation to ‘Ice’. This drug has terrible consequences for the individual and if anyone can attest to that, it is the accused herself. It is savagely addictive. Ridding oneself of that addiction is, to say the least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to ‘Ice’ is fraught with instances of disappointment. There are also serious consequences for the community.

Pausing there for a moment, the consequences for the community so far as they involve violence or misbehaviour, do not of themselves apply to this accused. Nevertheless, the consequences for the community include the deployment of medical and health facilities to help people who have become addicted to these drugs.

Further, the conduct of persons affected by ‘Ice’ both in private and -- well, pertinently in public can be quite dangerous.

The view of the community and the courts is reflected in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs including the drugs the subject of the charge in this case.

In relation to ‘Ice’, the guidelines articulated are to be found in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The guideline suggested for quantities involved in the present case, that is the range of between 10 grammes and 70 grammes, might attract a sentence of between 7 and 11 years’ imprisonment ([2014] 3 HKLRD 691, para 34).

The accused pleaded guilty before a magistrate and was committed for sentence of the High Court. She is, on that basis, a person who has taken responsibility for her conduct and pleaded guilty at the earliest practicable moment. By reason of that the courts recognised that she should be accorded a discount of one-third from what otherwise would be an appropriate sentence.

It seems to me that applying the recognized guidelines to which I have made reference earlier, the appropriate starting point in this case is 7 year and 6 months. It is appropriate to discount the sentence by one-third.

As I have already indicated, addiction to ‘Ice’ is a terrible thing for the person who is addicted and for those around them. She has two daughters, one by former marriage and one from her relationship with her boyfriend with whom she was living prior to her arrest. One can only hope that if only for the sake of her two daughters, she will make every effort while in prison to rid herself of terrible addiction and on release, become the mother that these two young children need and deserve.

Doing the best I can to combine justice and mercy, you are sentenced to 5 years’ imprisonment.