HKSAR v. TSUI CHI KIT

HCCC 281/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 281 OF 2015

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

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COURT: Defendant, you have pleaded guilty to two charges of trafficking in a dangerous drug, both charges being contrary to section (4)(1)(a) and (3) of the Dangerous Drugs Ordinance.

Both charges were committed at the Hong Lok Building, 477 Nathan Road, Yau Ma Tei, Kowloon on 13 January 2014.

You pleaded guilty before the magistrate and you were committed to the Court of First Instance for sentence. I confirmed your plea of guilty to the two charges with you and admission of their facts.

In the 1st charge you admitted to trafficking in 1.72 grammes of a mixture containing 1.112 grammes of heroin hydrochloride, 0.23 gramme of a solid containing 0.20 gramme of cocaine and 109 grammes of a crystalline solid containing 107 grammes of methamphetamine hydrochloride.

In the 2nd charge you admitted to unlawfully trafficking in 691 grammes of a crystalline solid containing 685 grammes of methamphetamine hydrochloride. Methamphetamine hydrochloride is commonly known as “Ice”.

On 13 January, police officers intercepted you on the staircase on the 5th floor of Hon Lok Building. You were stopped and searched. Inside the bag you were carrying were found the drugs in Charge 1. Upon arrest and under caution you said, “The pack of ‘Ice’ and the dangerous drugs will be just taken to someone”. Keys were found upon your person and that led to the address on the 5th floor of your building where you were a tenant.

The drugs in the 2nd charge was found in those premises. You were further arrested and under caution you said that the “Ice” in your room will be taken to someone as well.

In a video-recorded interview you said that you were going out to deliver drugs to somebody in Mong Kok Stadium. However, on the way there you were informed that you did not need to take as many drugs as you had and therefore you were on your way back home to drop off some of the drugs when you were intercepted by the police.

The estimated street value of all the drugs was $341,517.

You are 35 years of age and are of clear record. You have studied up to Form 3 level and were addicted to “Ice”.

Mr John McNamara has mitigated on your behalf. He had accurately stated that this is a typically tragic case where at your older years you went off the rails and became involved in such a serious offence.

You have all along been in gainful employment. However, having lost your job you started dabbling in “Ice”. In the meantime you had assisted your stepbrother to get out of financial trouble, which then led you to be in financial trouble when you lost your job. You peers, knowing that you were in financial trouble, preyed upon you to commit this offence. Not being able to cope, you fell into their trap.

I accept that this is totally out of character as this is your first offence ever committed. Your family members are now in court showing great support for you. I accept that you pleaded guilty at the first opportunity at the Magistrates’ Court and agreed all the facts.

The strongest mitigating factor is your plea of guilty, and a result of which you shall receive the customary one-third discount.

The drugs that you were trafficking in were “Ice”, save for a very small amount of cocaine and heroin in Charge 1.

For very large quantities in “Ice”, the Court of Appeal laid down new tariff guidelines in the case of HKSAR v Tam Yi Chun CACC 524/2011. That is for an amount of 600 grammes and over the same tariffs as are prescribed in Abdallah should apply for the quantities of “Ice”.

The total quantity of “Ice” in both charges amount to 792 grammes, and that is the quantity I shall take in sentencing you for trafficking.

The Abdallah guidelines laid down that between 600 and 1,200 grammes, a starting point after trial is a sentence of between 20 to 23 years’ imprisonment.

For this total amount of “Ice”, of 792 grammes, had you been convicted after trial I would have taken a starting point of 21 years’ imprisonment.

Giving you full credit for your plea of guilty, that term is discounted and you shall serve a term of 14 years’ imprisonment. I shall, however, as you have two charges, be required to sentence you individually for both offences.

In the 1st charge you were trafficking in 107 grammes of “Ice” and 1.32 grammes of heroin. For this amount, and had you been convicted after trial, I would have taken a starting point of 11 years and 6 months’ imprisonment. Giving you full credit for your plea of guilty that term shall be reduced to one of 7 years and 8 months’ imprisonment.

In Charge 2, the amount of “Ice” that you were trafficking in was 685 grammes. Had you been convicted after trial I would have taken a starting point of 20 years and 3 months’ imprisonment. Giving you full credit for your plea of guilty, that term shall be reduced to 13 years and 6 months’ imprisonment.

To reflect the global sentence of 14 years’ imprisonment, I shall order 6 months of Charge 1 to run consecutive to Charge 2 making 14 years’ imprisonment.

Addendum

Mr Lenny Cheng brought to my attention today a Court of Appeal case: HKSAR v Wan Lau Mei CACC 389/2013, a judgment handed down by my learned brothers Stock VP and McWalters J, handing down their reasons for sentence on 27 March 2014.

In that case the facts were similar in that there were two charges in trafficking in dangerous drugs. The 1st charge, the applicant was found to be trafficking in 2 grammes of cocaine, and in the 2nd charge the applicant was charged with trafficking in a mixture of drugs containing 22.89 grammes of the mixture of different drugs of ketamine, “Ice” heroin and cocaine.

The Court of First Instance judge sentenced the applicant to individual sentences. For the 1st charge he sentenced the applicant to 1 year and 4 months’ imprisonment, and for the 2nd charge to 4 years and 8 months’ imprisonment. The judge ordered that the sentence for the 2nd charge should run consecutive to the 1st charge making a total sentence of 6 years’ imprisonment.

In that appeal the Court of Appeal dealt with the issue of how the sentencing court or judge should deal with ordering sentences when there are two charges.

McWalters J, handing down the judgment of the court, said at paragraph 27:

“The first [sentencing issue] is how to sentence for two trafficking offences where different quantities of drugs are found in the accused’s possession on the same day but at different locations.”

At paragraph 29, it says:

“The judge should regard the two offences as representing one occasion of possession of the total amount of drugs and impose sentences on both offences for that total, making the sentences concurrent with one another. Separate sentences still have to be imposed and so the judge imposes the same sentence for the first offence, here the streetside possession on the applicant of 2 grammes of cocaine, as he does for het offence. He determines the sentence by adding the quantity of the drug of the 1st charge to the quantity to drugs the subject of the 2nd charge, here the drugs found in the applicant’s residence. An appropriate sentence for this total quantity of drugs is then imposed for both offences with the sentence for the second offence made concurrent with the sentence of the first offence.”

In this case, for the two charges the Court of Appeal found that an appropriate sentence after trial for the total amount of drugs was 6½ years. Giving a discount for the applicant’s plea the final sentence was 4 years and 4 months.

At paragraph 44, the conclusion: the judges set aside sentences for both charges and in substitution imposed sentences of 4 years 4 months on both charges, and further ordered that the sentence for the 2nd charge is to run concurrently with the 1st charge.

I have to say that this case has caused me some anxiety.

The Court of Appeal has for many many years consistently adopted the approach to sentence for individual offences and upon the gravity of each individual offence. This does not seem to have been followed in the present case Wan Lau Mei. For example, in Charge 1 of Wan, the sentence would have been, on an individual basis and upon the gravity a starting point of 2 years and reduced to that of 1 year and 4 months given the quantity of drugs. Instead, the court took a starting point of 6½ years for 2 grammes of cocaine.

With the greatest respect to my learned brothers, I consider that this is wrong in principle.

I would follow the approach of the Court of Appeal who has for many years, without me needing to cite any cases, been sentencing for individual offences upon their gravity and therefore do not feel bound to follow the court in Wan.

Therefore, of the two conflicting approach, I follow the approach that has generally always been taken by the Court of Appeal.

What is clear, however, on both the conflicting decisions, or in this case, is that one does takes a global approach or the totality principle in taking the global or total amount of drugs as the starting point, and then apportioning it between the different amount of drugs in each charge and sentencing for each charge individually.

I would just like to say that in regards to this case of Wan Lau Mei, I will be bringing it to the attention of the Court of Appeal.