HKSAR v. CHUNG CHEUK HANG

DCCC 952/2021

[2022] HKDC 753

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 952 OF 2021

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REASONS FOR SENTENCE

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1.  Mr Chung pleaded guilty before me to two charges as follows.

2.  Charge 1 is Conspiracy to arrange the passage to Hong Kong of unauthorized entrants, contrary to section 37D(1)(a)  of the Immigration Ordinance, Cap 115, and sections 159A and 159C of the Crimes Ordinance, Cap 200.  Particulars of Offence are that he, between 5 and 8 May 2021, both dates inclusive, in Hong Kong, conspired with a person known as “Lo Chun” and a person known as “Fook Jai” to arrange the passage to Hong Kong of unauthorized entrants.

3.  Charge 2 is Possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on 9 May 2021, at Room No 607, The Bay Bridge, no 123 Castle Peak Road – Ting Kau, Tsuen Wan, New Territories, in Hong Kong, had in his possession a dangerous drug, namely 2.57 grammes of a solid containing 2.29 grammes of cocaine and 0.09 gramme of a powder containing cocaine.

Facts admitted by Mr Chung

Charge 1

4.  On 9 May 2021, at 3:05 am, the police intercepted and arrested Mr Chung at the lobby of The Bay Bridge (“the Hotel”)  in Ting Kau for suspected involvement in a case of “Assisting the Passage to Hong Kong of Unauthorized Entrants”.

5.  Under caution, Mr Chung admitted the following:

(a)  He had found “Lo Chun” to liaise with “Fook Jai” to arrange 10 females to sneak into Hong Kong from the Mainland;

(b)  After everything had been arranged, “Lo Chun” suddenly told him that “Fook Jai” changed his mind because Fook Jai himself had 10-odd females coming down; and

(c)  All the females that Mr Chung had wanted to smuggle could not come down and they have been scolding him.

6.  Whatsapp messages with a contact saved with the name of “Lo Chun” were found on Mr Chung’s mobile phone.  Between 5 and 8 May 2021, Mr Chung had discussions with “Lo Chun” about the transportation arrangement for some people and the reward to be paid to one “Fat Gor”.  In particular, “Lo Chun” had mentioned that he would pay a bit more to “Fat Gor” as “Fat Gor” would help the girls onto the boats and vehicles.  Mr Chung had also mentioned that he had around 12 people who had been waiting for over a week, to which “Lo Chun” replied that he would force “Fat Gor” to drive four more people over.

Charge 2

7.  The key to Room 607 of the Hotel was found on Mr Chung.  Hotel records show he had booked into Room 607 since 7 May 2021.

8.  On 3:51 am of the same day, Room 607 was searched with the following discovery.  On a coffee table beside the bed were found:

(a)  13 red sealed plastic packets containing a total of 2.48 grammes of a solid containing 2.29 grammes of cocaine; and

(b)  A cigarette box containing a cigarette containing 0.09 gramme of a powder containing cocaine and another cigarette containing 0.09 gramme of a solid containing cocaine.

9.  Mr Chung was arrested for “Possession of Dangerous Drugs” and he admitted all the cocaine seized was for his self-consumption.  He admitted the same in a subsequent VRI.

Criminal record

10.  Mr Chung has one previous but dissimilar conviction in 2016.

Antecedents

11.  Mr Chung is aged 29 (28 at the time of the offences), educated to F5, was truck driver since 2009.  Mr Chung is single.  Before being placed into custody, he was living in public housing in Tin Shui Wai.  His family members include his parents, a younger sister and a daughter (aged 6).

Mitigation

12.  Ms Liza Yip of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chung.  The following is a summary of the mitigation submissions.

13.  Mr Chung’s parents separated when he was very young.  He had no contact with his father.  Nonetheless, both parents are in court to give their support.  Mr Chung’s younger sister has left Hong Kong and rarely kept contact.

14.  Mr Chung is single but has a daughter by his ex-girlfriend who left them when the child was 2 years old.  The girl is being taken care of Mr Chung’s mother (54).

15.  Prior to his arrest, Mr Chung was living with his mother and daughter. In order to take care of the young child, the mother had to quit her part-time cleaner job.  Mr Chung became the sole bread winner.

16.  Mr Chung started running a small business renting out a fishing boat to others to go fishing, earning about $20,000 a month.  He made regular contribution to his mother of about $10,000 each month.

17.  Because of Covid in 2020, his business went down.  His income was reduced.  He became an addict to cocaine about that time.  He was only able to work as a part-time truck driver delivering fishes and seafood.  His monthly contribution to mother was cut by 60%.

18.  After his arrest, his ex-girlfriend started contributing a few thousand dollars per month to support the living expenses of their daughter and Mr Chung’s mother.

19.  Mr Chung committed the offence subject of Charge 1 because he needed money for family expenses.  He was manipulated by dubious peers.

20.  On 5 May 2021, an old rental customer “Ah On” suddenly suggested to Mr Chung that he transport some unauthorized entrants (females)  to Hong Kong.  Mr Chung refused to do the transportation himself, but agreed to contact “Lo Chun” and “Fook Jai” and make the arrangements for the females to sneak into Hong Kong.  Ah On gave him the details of the females; Lo Chun and Fook Jai were to arrange the transportation for the females to come to Hong Kong.  The females were willing participants.

21.  Mr Chung’s role was only to act as a go-between for Ah On, the females, Lo Chun and Fook Jai.  Mr Chung would receive a few hundred dollars per person/female when they arrive in Hong Kong.

22.  On 8 May 2021, Lo Chun suddenly informed Mr Chung that the price of transportation for each female would be increased and there would only be 4 vacant seats available.  As this was not the arrangement reached with Ah On, no one was brought into Hong Kong in the end.

23.  All the cocaine found was for Mr Chung’s own consumption.  He rented the hotel room for the purpose of consuming the cocaine.  Mr Chung had no intention to share the drug with anyone.

24.  Mr Chung was cooperative with the police and made frank admissions.  He however dared not reveal the existence and contact details of Ah On at the time of arrest for safety concerns of his family.  Mr Chung pleaded guilty showing remorse.  The criminal plan had not been carried out and his role was minor. Because of the small amount of cocaine, there was little “latent risk”.

25.  Mr Chung has expressed his remorse to the court and his family.

26.  There is no sentencing tariff for the offence subject of Charge 1.  The cases of R v Ho Siu Lun & Ors, CACC 257/1986, and HKSAR v Tse Chi Hei, CACC 393/2009, were submitted to assist the court.  Ms Yip reminded the court that in the absence of aggravating factors, a starting point of 4 years appears to be the norm for a person who is not the coxswain.

27.  The sentencing guidelines for simple possession of a dangerous drug cases can be seen in HKSAR v Mok Cho Tik, CACC 165/2000.  Ms Yip urged the court to adopt the lower end of the range of starting points.

28.  The court is invited to give Mr Chung the full one-third discount.  The court is also urged to consider his minor role and he was doing what he was told and instructed by Ah On.

29.  Ms Yip submitted on behalf of Mr Chung three mitigation letters written in Chinese (with English translation)  by respectively Mr Chung himself, his mother and a pastor.  The contents are generally that Mr Chung was the family pillar; that he felt regretful; that he promised he would become a responsible father and distance himself from drug and bad peers; that he would return to hard work and become a new self; that his family wish him an early return and play the role of a good citizen and father.

30.  Ms Yip also submitted on behalf of Mr Chung a certificate of completion of a bible correspondence course entitled “Light of Life”.

Sentence

31.  For Charge 1, the conspiracy offence attracts a maximum penalty identical to the substantive offence ie a fine of $5M and imprisonment for 14 years.

32.  I accept from mitigation that Mr Chung did not take part in organizing or planning the journey[1] and that he was merely a go-between.  However, although this was a conspiracy that was not fully executed, the fact that this was a conspiracy at all will call for a higher starting point because it necessarily involved more than one offender.  In line with Ho Siu Lun & Ors, supra, and bearing in mind the fact of conspiracy, albeit one that was not fully executed, I shall adopt a starting point of 4 years 3 months’ imprisonment.

33.  For Charge 2, in line with Mok Cho Tik, supra, and in light of the quantity involved, I shall adopt a starting point of 12 months’ imprisonment.  I then consider the latent risk factor with the following elements in mind: Mr Chung not having a stable income; the use of a hotel room to consume drug; 13 separate plastic bags but of small total quantity; and absence of a previous trafficking record.  I conclude that the latent risk is not high, so I will not enhance the starting point.

34.  Mr Chung pleaded guilty in good time.  I shall grant him the usual 1/3 discount.  There are no other mitigating factors of weight to warrant any further discounts.

35.  The two offences are completely separate in nature and one is not the concomitant of the other.  They ought to attract consecutive sentences, subject only to the principle of totality.

(Mr Chung, please stand)

36.  For Charge 1, Mr Chung shall go to prison for 34 months.

37.  For Charge 2, Mr Chung shall go to prison for 8 months.

38.  On an application of the totality principle, I order that 4 months of the sentence on Charge 2 is to run consecutively to the sentence on Charge 1, making an aggregate sentence of 38 months’ imprisonment.