HKSAR v. CHAN YIP FAI

HCCC 165/2020

[2021] HKCFI 2038

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 165 OF 2020

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REASONS FOR SENTENCE

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1.  On 27 July 2020, the defendant pleaded guilty to one count of trafficking in a dangerous drug before Magistrate Mr Cheang Kei-hong, admitted to the set of summary of facts prepared by the prosecution in support of the offence, and was committed to the Court of First Instance for sentence.

2.  The facts the defendant admitted to before the learned Magistrate are as follows:

“1. On 23 July 2018, police officers conducted an anti-drug operation at 5/F, Sau Ming House, Sau Mau Ping Estate, No 101 Sau Ming Road, Sau Mau Ping, Kowloon, Hong Kong.

2. At about 11:38 a.m. on the same day, a postman came with a brown parcel (“P1”)  and waited outside Room 519, 5/F, Sau Ming House, Sau Mau Ping Estate. The postman knocked on the door of Room 519 but no one answered. D then opened the door of Room 518, 5/F, Sau Ming House, Sau Mau Ping Estate and asked if the parcel was for Room 518. The postman called the contact number of the recipient who confirmed that P1 should be delivered to Room 518. D then received P1 and returned to Room 518. Subsequent investigation revealed that “So Cho-yiu” was stated as the recipient of P1. The recipient’s address was Room 519, 5/F, Sau Ming House, Sau Mau Ping Estate.

3. At about 12:27 a.m. on the same day, D left Room 518 with P1. He was intercepted by the police outside Room 518. Upon search, P1 was found to contain 75 packs of snacks and 14 packs of purported Thai noodles. The purported Thai noodles contained a total of 14 foil packs of a total of 2,086g of a solid containing 901.1g of heroin. D was arrested and he denied the offence under caution.

Phone examination

4. Suspicious messages were found in D’s phone upon check. The messages revealed that D received a few thousand (dollars)  rewards for collecting parcel. “Cannabis”, “Coke”, “Perfume” and “Powder” etc. were mentioned in the messages.

5. The street value of the drug seized in the present case is HK$780,352.6.

6. D now admits that he possessed the drug found in P1 at the material time for the purpose of unlawful trafficking.”

3.  The defendant applied to reverse his plea of guilty subsequently but his application was refused on 8 July 2021, and he was duly convicted.

Previous convictions

4.  The defendant was sentenced on 26 February 2015 when he was 19 to detention in the Training Centre for the offence of Conspiracy to Robbery.  He was discharged in May 2016.

Mitigation

5.  The defendant was born in mainland China in October 1996 and is now 24 years old.  He was educated up to Form 3 level in Hong Kong.  The defendant is single and resides at Sau Mau Ping Estate with his 47-year-old mother and elder sister.  His father had passed away.

6.  At the time of his arrest in July 2018, the defendant was working as a waiter with a monthly salary of $14,000.

7.  Although the defendant is not married, he and his former girlfriend have a 3-year-old boy who is being looked after by the defendant’s mother and the defendant’s ex-girlfriend while the defendant is in custody.

8.  Mr Cheung, very fairly, confirmed that the defendant is not putting forward the ground of mitigation of the defendant thinking that he was trafficking in cannabis and not heroin.

9.  Mr Cheung, in his helpful written submissions in mitigation, pointed out that there is no evidence to suggest that the defendant had taken part in arranging for the parcel to be sent to Hong Kong and as such his sentence should not be enhanced on the basis of having an international element. I agree with Mr Cheung and there is to be no such enhancement.

10.  Mr Cheung referred to various cases where a discount less than the usual one-third had been given upon a guilty plea where the facts had been contested unsuccessfully through a Newton hearing, ranging from 25% to 30.3%.

11.  It is Mr Cheung’s position that the rationale behind a lesser discount after an unsuccessful challenge to the facts also applies to a reversal of plea application, being that of time wasted.  It is his submissions that, taking the whole case into consideration, the defendant should still be given the full one-third discount.

Sentence

12.  The maximum sentence for trafficking in a dangerous drug on conviction upon indictment is that of a fine of $5 million and life imprisonment.

13.  The defendant trafficked in a 2,086 grammes mixture, which contained 901.1 grammes of heroin hydrochloride.

14.  The guideline starting point for trafficking in 901.1 grammes of heroin hydrochloride is 258 months’imprisonment[1]. This is the starting point I adopt.

15.  The defendant had originally entered a timely plea of guilty.  A full one-third discount would have been applied and he would have been sentenced to 172 months’ imprisonment after plea.

16.  The defendant did, however, unsuccessfully try to reverse his plea, and I must consider how his failed application should be reflected in the sentence.

17.  It is trite law that in the case of an unsuccessful Newton hearing, the defendant may not be given the full one-third sentencing discount.  I, agreeing with Mr Cheung, find that the defendant’s failed application to reverse his plea would put him in a similar position in that time had been spent to deal with his application.

18.  It is not disputed that there remains, however, an overriding discretion in the judge in sentencing when considering what discount is to be granted.

19.  In deciding how to exercise my discretion, I have taken the following into consideration.

20.  The defendant did not make any allegations of inappropriate behavior against any of his legal representatives.  He had chosen not to enter the witness box and the prosecution had decided they did not want to cross-examine him.  No witnesses were called to give evidence.  The actual hearing of the application lasted but a few hours.

21.  The defendant is relatively young at 24.  He does have a previous conviction but that was when he was 19 years old.

22.  Even if on a one-third discount basis, the defendant will be sentenced to more than 14 years’ imprisonment and will likely be incarcerated for more than 9 years, assuming he will be of good behavior while in prison.  This is by no means a short sentence.

23.  Having taken into consideration all the circumstances, and applying the principle of totality at the same time, I grant the defendant a 28% (instead of the full 33.33%)  discount for his guilty plea, rounding up to a sentence of 185 months’ imprisonment.