HKSAR v. HO KAI WAH

HCCC 408/2017

[2018] HKCFI 856

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 408 OF 2017

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

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COURT:

The defendant was charged with one charge of trafficking in dangerous drugs. He pleaded guilty before a magistrate and was committed to the Court of First Instance for sentence. In sentencing, I have taken into consideration the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drugs involved, background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarised as follows.

The defendant was the only passenger in a taxi, which was stopped by police officers. Underneath his waist band, a plastic bag containing two plastic bags of dangerous drugs was found.

Under caution, he said all the dangerous drugs were for his own consumption. He then suddenly pushed one of the officers and attempted to flee. Officers managed to subdue him, despite he struggled. On him, HK$13,322.02 of cash and 240 renminbi and three mobile phones were found.

I was told that the defendant is 40 years of age. He received education up to junior secondary level and had worked as a shop assistant and a cook. He is divorced and had a son, 19 years old and a daughter 16 years old.

He has a bad criminal convictions record. His first conviction dated back to 1989, when the defendant was only 11 years old. He was put on probation for having committed four cases of shoplifting.

In 2009, he started to have convictions relating to drug. In 2010, he was convicted for trafficking in dangerous drug and a sentence of 4 years and 4 months’ imprisonment was imposed. In 2014, for the same offence, he was sentenced to 4 years’ imprisonment. The other offences he committed included claiming to be a triad society member, assault and theft.

In mitigation, learned counsel for the defence, Mr Chandler, submitted that the defendant was only a courier and urged the court to take into account that the defendant pleaded guilty at the earliest opportunity.

He also told the court, as the criminal record indicates, the root of the problem of the defendant is his drug addiction. However, the defendant had reflected upon himself and under the influence of religion, he is now determined to turn over a new leaf.

The dangerous drugs the defendant trafficked in were 21.51 grammes of a crystalline sold containing 20.65 grammes of methamphetamine hydrochloride and 1.82 grammes of a solid containing 0.61 grammes of methylenedioxymethamphetamine.

Almost all of the dangerous drug was “Ice”. The tariff, as set out in HKSAR v Tam Yi Chun CACC 524/2011 is applicable. In that case, the Court of Appeal held that if the narcotic content is between 10 to 70 grammes, the sentence to be considered is 7 to 11 years’ imprisonment.

In all the circumstances, I see no reason to depart from the tariff. By reference to the quantity of the “Ice” involved, which is the most important factor in consideration of sentence, a starting point of slightly higher than 7½ years would have been appropriate.

The other type of drugs is not as harmful in nature and the quantity is small, therefore the impact on sentence without more is insignificant. However, since the defendant was trafficking in two different types of dangerous drug, it is an aggravating factor.

In this regard, Mr Chandler submitted that if it was a case of trafficking in this type and quantity of dangerous drug only, it will attract a sentence of a few months, and asked the court not to enhance the sentence. I am of the view that a slight enhancement is warranted.

Another aggravating feature is that this is the third conviction of the defendant for the offence of trafficking in dangerous drug. Mr Chandler urged the court not to enhance the sentence, since the previous convictions do not seem to be for cases of much seriousness, as reflected by the relatively light sentences imposed.

Having regard to the fact that this is the third conviction for the offence and the defendant committed the present offence just a few months after his discharge from prison, in my judgment, an enhancement is called for.

Bearing in mind the submission of Mr Chandler, the risk of excessive enhancement for different factors, I am of the view that the starting point should be enhanced by about 6 months for the aggravating features. I therefore adopt an ultimate starting point of 8 years.

The defendant pleaded guilty, he is entitled to a one-third discount. In all the circumstances, having regard to the mitigation submission of Mr Chandler, I am of the view that this is the extent of discount the defendant is entitled to.

For the reasons I have said, I sentence you to 5 years and 4 months’ imprisonment.