HKSAR v. CHUNG YUK FAI

HCCC 502/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 502 OF 2014

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

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COURT: The defendant has been convicted on his own plea on two counts of trafficking in a dangerous drug.

The Particulars of Offence in respect of Count 1 provide that on 17 July 2014, at the Kingland Apartments, Nos 737-741C Nathan Road, Mong Kok, Kowloon, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 1.06 kilogrammes of a crystalline solid containing 1.06 kilogrammes of methamphetamine hydrochloride, commonly known as the “Ice” drug.

The Particulars of Offence in respect of Count 2 provide that on 17 July 2014, at Room C3, 14th Floor, Kingland Apartments, Nos 737-741C Nathan Road, Mong Kok, Kowloon, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 0.17 kilogramme of a crystalline solid containing 0.17 kilogramme of methamphetamine hydrochloride.

The Summary of Facts admitted by the defendant provides that at around 3 pm on 17 July 2014, the defendant was intercepted by the police at the staircase on the 13th Floor, Kingland Apartments, Nos 737-741C Nathan Road, Mong Kok, Kowloon. He was walking downstairs and was holding a black plastic bag in his right hand. The bag was searched. One transparent resealable plastic bag containing 1.06 kilogrammes of a crystalline solid containing 1.06 kilogrammes of methamphetamine hydrochloride was found inside.

The defendant was arrested. Under caution, he stated, “I carried this bag of ‘Ice’ for somebody.”

Keys were found inside the defendant’s trouser pocket. He was escorted back to his home at Room C3, 14th Floor of Kingland Apartments. Entry to the premises was gained by using the keys found on the defendant.

The defendant’s home was searched. Inside a drawer in the bedroom, one paper carton box, which purported to contain tealeaves, but in fact contained seven plastic bags containing a total of 0.17 kilogramme of a crystalline solid containing 0.17 kilogramme of methamphetamine hydrochloride was found.

The defendant was further arrested. Under caution, he stated, “It was my boss, ‘Ah To’, who asked me to come back and pack such ‘ice’ separately, to facilitate delivery to persons.”

Also found inside the bedroom was a tenancy agreement with the defendant named as the tenant, a large number of empty transparent resealable plastic bags and one electronic scale.

At the time of his arrest, the defendant had in his possession two mobile phones and cash of HK$4,238 and RMB210.50.

In his video-recorded interview, under caution, the defendant claimed that he acquainted “Ah To” in a public house in Shenzhen in June 2014. The defendant told “Ah To” that he was in debt. “Ah To” offered him a job for him to earn some quick money. The defendant took up the offer. “Ah To” then told the defendant that he had to deliver “Ice” to others for a reward of HK$6,000. The defendant then gave his phone number to “Ah To”.

On 11 July 2014, “Ah To” called the defendant up and asked him to go to the bus terminus at Tuen Mun Ferry Pier the following morning. The defendant acted accordingly. “Ah To” called the defendant up again and instructed him to pick up a black plastic bag from a flowerbed. The defendant opened the plastic bag and saw two bags, each containing a white substance inside. He knew that the substance was the drug “Ice”. The defendant then took a taxi back home with the drug.

After arriving home, the defendant placed the two bags of drugs inside a drawer. He then weighed the two plastic bags and found out that one was 100 grammes, whilst the other was about 1 kilogramme. He then used the electronic scale, some transparent resealable plastic bags and plastic spoons, all previously bought from the Mainland, to divide the drug contained inside the 100-gramme bag into seven smaller packets, each weighing approximately 28 grammes.

On 17 July 2014, “Ah To” called the defendant up and asked the defendant to take the 1-kilogramme bag of “Ice” to Mong Kok East MTR Station. The defendant was told to put the drug into the rubbish bin of the disabled toilet inside the station.

When the defendant was intercepted by the police, he was on his way to Mong Kok East MTR Station.

The defendant admitted that one of the Nokia mobile phones found on him was for communicating with “Ah To”. He claimed that the money found on him was his salary from working in the kitchen and as a construction site worker.

The defendant admitted that he was the sole tenant of Room C3. He had been living there since April 2014, paying a monthly rental of HK$6,500.

The defendant claimed that he had not yet received any money from “Ah To”.

The estimated street value of the dangerous drug seized was HK$551,040.

In the Summary of Facts the defendant expressly admitted that he possessed the dangerous drugs seized for the purpose of trafficking.

By way of personal background, the defendant is 51 years of age. He was born in China in February 1964. He was educated up to Primary 4 level in China. At the time of arrest, the defendant was working as a casual kitchen worker, earning some $17,000 per month.

The accused came to Hong Kong from China in 1978. He got married with his former wife in 1991, and they have three children. The defendant was subsequently divorced, and he married his present wife in 2007. They have one son and one daughter.

The defendant has one previous conviction for gambling, for which he was fined $200 in 1983.

By way of mitigation, Mr Gordon Wong submitted on behalf of the defendant that he has no previous drug conviction. Mr Wong further urged upon the court to give full credit for the defendant’s guilty plea, which was indicated as early as the pre-trial review in August 2015.

A joint mitigation letter form the defendant’s parents has been submitted to the court and the contents thereof has been duly noted. However, as has been pointed out by the courts on many previous occasions, personal and family circumstances of a defendant will offer little mitigation in a serious case of drug trafficking, such as the one before the court today.

In the present case, the narcotic involved in Count 1 is 1,060 grammes of methamphetamine hydrochloride. The narcotic involved in Count 2 is 170 grammes of the same drug.

This is a case where different quantities of narcotics were seized from the defendant in the course of an enforcement operation and separately charged. Having regard to the proximity in time and place in respect of the commission of the two offences, clearly, they fall to be considered together.

In my view, this is a case where I should consider the defendant’s sentence from the point of view of the total quantity of the dangerous drug (ie 1,230 grammes of methamphetamine hydrochloride), rather than the individual, smaller quantities.

The offences in the present case were committed on 17 July 2014, ie after the Court of Appeal had handed down its Judgment in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 on 9 June 2014, which sets out revised tariffs for trafficking in the “Ice” drug.

In the Tam Yi Chun case, the Court of Appeal held that for trafficking in amounts of 600 grammes and over of the “Ice” drug, the proper tariffs to be imposed after trial are the same tariffs as are prescribed in HKSAR v Abadallah [2009] 2 HKLRD 437 for those quantities of heroin.

In the Abdallah case, it was held by the Court of Appeal that for trafficking in between 1,200 grammes to 4,000 grammes of heroin, the guideline starting point after trial should be 23 to 26 years’ imprisonment.

In my view, based on the total quantity of the narcotic involved (1,230 grammes of methamphetamine hydrochloride), the appropriate overall starting point for sentence in the present case should be 23 years’ imprisonment.

I shall give the defendant the full one-third discount for his guilty plea from the overall starting point of 23 years’ imprisonment. This results in a total sentence of 15 years and 4 months’ imprisonment.

In order to achieve the appropriate totality of sentence of 15 years and 4 months’ imprisonment, I order as follows.

(1) In respect of Count 1, for the quantity of narcotic involved, I adopt the starting point of 22 years and 3 months’ imprisonment. After affording the defendant a one-third discount, the sentence on Count 1 is 14 years and 10 months’ imprisonment.

(2) In respect of Count 2, for the quantity of narcotic involved, I adopt the starting point of 12 years and 8 months’ imprisonment. After affording the defendant a one-third discount, the sentence on Count 2 is 8 years and 5 months’ imprisonment.

(3) 6 months of the sentence on Count 2 is to run consecutively to the 14 years and 10 months’ sentence on Count 1. This results in a total sentence of 15 years and 4 months’ imprisonment.