HKSAR v. CHOY YUK LUNG

HCCC 27/2018

[2018] HKCFI 1547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 27 OF 2018

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

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COURT:

The defendant pleaded guilty to one count of Trafficking in a dangerous drug, contrary to section 4 1(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

He was intercepted by the police and upon search of a recycled bag that he was carrying, six resealable transparent plastic bags of ‘Ice’ and an electronic scale was found inside a mobile phone box.

Upon caution, he claimed that he bought the ‘Ice’ for $3,000 for his own consumption.

Upon analysis, it was found that the drugs were 45.5 grammes of a crystalline solid containing 45.4 grammes of methamphetamine hydrochloride.

The retail value of the drugs was around $20,202.

The defendant is now aged 53. He has 14 previous convictions of which 14 items concerned possession of dangerous drugs and five for trafficking in dangerous drugs, and two for possession of pipe or equipment fit and intended for smoking dangerous drugs.

In May 2010, he was sentenced to 4 years’ imprisonment for trafficking in dangerous drugs. And his last conviction, or last date of sentence, was on 17 February 2017 for possession of dangerous drugs and possession of pipe or equipment, for which he received a total of 4 months’ imprisonment but he was discharged immediately, on the same day, because he has already been remanded prior to the date of sentence. It was less than half a year after his discharge, in respect of that case, that he committed the present offence.

By way of mitigation, I was urged to take into account his guilty plea and his medical report, which shows that he is a diabetic and is currently wheel chair bound. Counsel also submitted that a significant amount of drugs in this case, namely one-third of the amount, was for the defendant’s own consumption. Counsel says that such is consistent with the defendant’s assertion of self-consumption immediately upon his arrest.

I was drawn to the attention of the case of Chow Chun Sang, which says that if that submission is accepted, a discount of between 10 to 25 percent from starting point should be given.

Also in the case of Tsang Chung Keung, the Court of Appeal said that with a finding that half of the ‘Ice’ was for consumption, a discount of 18 percent from the starting point would be appropriate.

In sentencing the defendant, I have taken into account his plea, the nature of the drugs, the relevant sentencing tariff and mitigation forwarded.

The narcotics in the present case is 45.4 grammes of ‘Ice’ which falls within the 10 to 70 grammes, i.e. 7 to 11 years sentencing tariff, as stipulated in the case of Tam Yi Chun. I consider an appropriate starting point should be 111 months. I could, with his appalling record, enhance the starting point, but I am not going to do in the present case.

As to the allegation that a substantive portion is for his own consumption, I refer to the cases of Tam Ling Yuen and Wong Suet Hau.

It is time for us to revisit the case of Wong Suet Hau in the sense that we have got to consider the following. First is the quantity and value of the drugs here, 45.4 grammes of ‘Ice’, with a retail value of over $20,000.

Then we look at the general circumstances, including how the drugs were wrapped and how many packages were found. In the present case, there were altogether six packages of drugs hidden in a mobile phone box.

As to where the drugs had been discovered, here it was at the concourse of an MTR station at 7.25 pm, where the defendant’s residence was in Kwai Chung.

Then the presence of paraphernalia associated with the drugs. In the present case, there was the electronic scale. Then I consider whether the defendant was an addict or habitual user. In the present case, he has drug-related previous, some for possession, some for trafficking. I accept that he might well have been a user at the time of his arrest.

As to the explanation given by the defendant following his arrest, immediately upon his arrest he claimed that all the ‘Ice’ was for his self-consumption.

Then I consider his general means and his ability to pay for his drugs, otherwise than by trafficking. Here, he was on social allowance of $4,559 a month.

And lastly, for his criminal record, as I said, he has got both trafficking and possession of dangerous drugs records. It is worth noting, in that case, Stuart-Moore VP said that the above factors could be determined without a Newton hearing. And only if, where it was accepted that a significant proportion of the drugs were for the defendant’s own consumption, then the court should adjust the sentence to reflect the fact that not all the drugs were for trafficking. It is stressed there that the sentencing courts are required to look with great care, the surrounding circumstances in order to decide whether or not to accept the contention.

The case of Chow Chun Sang was considered in the case of Tam Ling Yuen. The Court of Appeal there noted in Wong Suet Hau, the factual situation was that there was no readily discernible quantity which the applicant possessed for the purpose of self-consumption. The pre-requisite remains for a sentencing court to find, on the available evidence, that a significant proportion of the drugs were for the defendant’s own consumption.

What then is a significant amount? From the case of Tam Ling Yuen, it can be seen to be half of the amount. And as found by the trial judge, in Tsang Chung Keung, at least more than half or two-thirds, as in the case of Cheuk Kin Man. But I need to stress what was said by Lam VP in Tam Ling Yuen:

“We have no hesitation whatsoever in rejecting this defendant’s suggestion that the requirement clearly articulated in the reserved judgment of this court in Wong Suet Hau, that a discount of sentence was to be afforded only where the court accepted that a significant proportion of the dangerous drugs, in which the defendant trafficked unlawfully, was for his self-consumption, had been abandoned or jettisoned.”

In the present case, the six packets of ‘Ice’ were all placed together with an electronic scale inside the mobile phone box, carried by the defendant.

He was intercepted in the evening, inside the concourse of an MTR station. He said under caution, the drugs were purchased in Yau Ma Tei. His account of being in Shau Kei Wan with the drugs to look for a friend, failing which he was on his way home, was just ludicrous.

So was his claim that he divided the drugs himself with the electronic scale in a public toilet. It is simply unthinkable that the risk of carrying drugs in a public place for such a long period of time was not apparent to a defendant who had had so many drug-related previous convictions.

The defendant claims, through his counsel, with a bare assertion, that one-third of the drugs was for his own consumption. Whilst I do accept that some of the ‘Ice’ might be for his own consumption, I do not accept that any significant or readily quantifiable division was for the defendant’s own consumption, to warrant a reduction from the starting point.

I see nothing in this case which would warrant any further discount from the one-third discount for his plea and his remorse is subsumed into the one-third.

He goes to prison for 6 years and 2 months.