HKSAR v. YU WAI HUNG

DCCC 942/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 454 OF 2014

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REASONS FOR SENTENCE

1.  The defendant pleaded guilty to 2 charges of "Trafficking in a dangerous drug". The dangerous drug involved is methamphetamine hydrochloride (commonly known as "ICE") .

Summary of Facts

Charge 1

2.  At 6:30 pm on 15 August 2014, PC 13321 (PW1), posing as a customer, called a phone number 6259 4956.  A male voice stated that he could arrange delivery of "pork" and meet PW1 outside an LV Shop.

3.  At 8:03 pm, a male voice, using phone number 5901 5519, called PW1 asking him to go to the LV Shop on Pedder Street, Central.  He also told PW1 that he was in a red shirt.

4.  At 8:05 pm, PW1 arrived at Pedder Street.  He approached the defendant (who was in a red shirt) and asked him how much.  The defendant replied $600 including taxi fare.  PW1 gave $600 marked money to the defendant.  The defendant handed a brown packet (E1) to PW1.

5.  E1 was later found to contain 1.33 grammes of a crystalline solid containing 1.26 grammes of methamphetamine hydrochloride.

Charge 2

6.  At 7:18 pm on 24 August 2014, PW1 phoned 5901 5519.  A male voice told PW1 that he could deliver those things again to PW1 at   8:00 pm at the taxi stand on Pedder Street.

7.  At 7:25 pm, a male voice, using phone number 5901 5519, called PW1 suggesting PW1 to buy 3.5 grammes of "ICE" at $1,100 including taxi fare.  PW1 agreed.

8.  At 8:35 pm, PW1 met the defendant outside Nos.1-3 Pedder Street.  PW1 gave the defendant $1,100 marked money, and the defendant gave PW1 a transparent resealable plastic bag (E2).  He also told PW1 to give him a call should he need it again in the future.  E2 was later found to contain 3.46 grammes of a crystalline solid containing 3.34 grammes of methamphetamine hydrochloride.

9.  At 8:39 pm, PC 50551 (PW3) arrested the defendant for "drug trafficking".  Under caution, he said the drug was obtained from someone and he brought them to the scene.  PW3 seized the mobile phone which was used for calling PW1 and the $1,100 marked money from the defendant.

Admissions

10.  In his records of interview, the defendant admitted having delivered a packet of "ICE" to a male at Pedder Street on 15 August 2014 and received $600 from him.  He earned about $100 in that transaction.  He also admitted having committed the offence in Charge 2.  He earned $300 to $400 in that transaction.  The defendant further admitted that the phone number 5901 5519 belonged to him.

Mitigation & Sentence

11.  The defendant is now 33.  He has 6 conviction records, which include 2 "trafficking" offences and 2 "simple possession" offences.  His parents have passed away and he is out of contact with his 2 siblings.  Defence lawyer Mr. WONG informed me that the defendant's left eye is blind, a disability since his infant days.  He worked as a casual demolition worker at construction sites prior to his arrest.

12.  Mr. WONG submitted that the defendant was not a police target.  As stated in the Summary of Facts, the decoy officer called a different phone number right before the 1^st transaction. That phone number in fact belonged to the defendant's friend "Ka Ho".  "Ka Ho" was out of stock that day and the defendant happened to be around.  "Ka Ho" therefore referred the "business" to the defendant.  Similarly, the decoy officer also called "Ka Ho" first for the 2^nd transaction, but failed to reach him.  He then called the defendant instead.  Mr. WONG submitted that the defendant is not a professional trafficker nor was trafficking his side business.

13.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders.

14.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in ICE (see A-G v CHING Kwok-hung [1991] 2 HKLR 125).  For up to 10 grammes, the sentence ranges from 3 to 7 years' imprisonment.

15.  In Charge 1, the defendant trafficked in 1.26 grammes of ICE; the appropriate starting point is 3 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 2 years.  Apart from this, I see no other mitigating factors which warrant any further discount.  Hence, the sentence for Charge 1 is 2 years' imprisonment.

16.  In Charge 2, the defendant trafficked in 3.34 grammes of ICE; the appropriate starting point is 4 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 32 months.  The sentence for Charge 2 is 32 months' imprisonment.

17.  The defendant sold drugs to an undercover police officer on 2 separate occasions.  The 2 offences took place 9 days apart; they are separate and distinct.  I have borne in mind the comments made by McWalters J (as he then was) in HKSAR v PAU King Kong [2013] 3 HKLRD 676  on sentencing a drug trafficker selling different types of drug to an undercover police officer on multiple occasions.[1]  Having considered the totality principle, I order 4 months in Charge 1 to run consecutive to Charge 2; arriving at a total prison term of 36 months for both charges.