HKSAR v. CHOI CHI HIM (also known as TSUI CHI HIM)

DCCC 519/2020

[2021] HKDC 432

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 519 OF 2020

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REASONS FOR SENTENCE

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1.  Mr Choi pleaded guilty before me to two charges on a Charge Sheet as follows.

2.  Charge 1 is Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on or about 2 May 2020, outside Ground Floor, No 682 Shanghai Street, Mong Kok, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 28.63 grammes of a solid containing 22.8 grammes of cocaine.

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 3 May 2020, at Search Room No 2, Report Room, Mong Kok Police Station, No 142 Prince Edward Road West, Mong Kok, Kowloon, in Hong Kong, had in his possession a dangerous drug, namely 0.16 gramme of a solid containing 0.14 gramme of cocaine.

Facts admitted by Mr Choi

4.  At almost midnight of 2/3 May 2020, police officers were patrolling along Shanghai Street, Mong Kok.  Mr Choi was walking out from a rear lane furtively.  On seeing the officers, Mr Choi ran.  Police gave chase.  During the run, Mr Choi dropped a black handbag on the ground and when he reached No 682 of Shanghai Street, Mr Choi further dropped two white objects on the ground.  He was soon subdued by the officers.

5.  Police retrieved the black handbag and the two white objects in their undisturbed form.

6.  Police arrested Mr Choi.  On him were found three mobile phones.

7.  The black handbag was found to contain Mr Choi’s identity card and a total of HKD32,757.50 cash.

8.  The two white objects were later respectively confirmed to be (i) one plastic bag wrapped by tissues containing 23.2 grammes of a solid containing 17.6 grammes of cocaine; and (ii) One plastic bag wrapped by tissues containing 33 plastic bags containing a total of 5.43 grammes of a solid containing 5.2 grammes of cocaine.

9.  On 3 May 2020, police conducted a body search on Mr Choi at the Mong Kok Police Station.  In a small pocket inside the right front pocket of Mr Choi’s jeans, one plastic bag containing 0.16 gramme of a solid containing 0.14 gramme of cocaine was found.  Under caution, Mr Choi stated that it was cocaine for his own consumption.

10.  The estimated price of the cocaine Mr Choi dropped on the ground was HKD29,138.40.  The estimated price of the cocaine found on him was HKD178.92.

11.  Mr Choi admitted that the cocaine he dropped on the ground was in his possession for the purpose of unlawful trafficking.

Criminal record

12.  Mr Choi has 5 previous convictions including 2 drug trafficking and 2 drug possession convictions.  He was last sentenced in February 2017 to 56 months’ imprisonment for drug trafficking.

Antecedents

13.  Mr Choi is aged 26 (25 at the time of the offences), single, educated to higher secondary education level, unemployed.  He had no fixed place of abode. He was last discharged from prison on 21 February 2020.

Mitigation

14.  Ms Shirley Hung of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Choi.

15.  The following is a summary of the mitigation submissions.

16.  Mr Choi’s parents were separated when he was born and he was raised by his grandmother.  He began trespassing the law at a young age due to lack of parental care and guidance.  He has no family connection and had no fixed place of abode.  Mr Choi had worked as a warehouse keeper but had become unemployed near the time of the offences.

17.  The strongest mitigating factor is Mr Choi’s pleas of guilty, entitling him to the full 1/3 discount.

18.  The tariff sentences for trafficking in cocaine are identical to those for trafficking in heroin.  The latter could be found in R v Lau Tak Ming [1990] 2 HKLR 370.  Where the quantity of narcotic is between 10 and 50 grammes, the sentence is between 5 and 8 years’ imprisonment.  The drug in Charge 1 (trafficking) is 22.8 grammes of cocaine, so the starting point of 6 years on a purely arithmetical approach is appropriate.

19.  It is accepted that because of Mr Choi’s previous convictions and the fact that he was last convicted in 2017 of trafficking that the court may view Mr Choi as a persistent offender and would consider enhancing the starting point for both charges.

20.  On the topic of enhancement because of previous similar convictions, the court was invited to consider all circumstances of Mr Choi, including his relatively young age.

21.  Another factor of consideration is that any enhancement imposed should also be proportional to the amount of drugs involved and that the enhancement imposed would not disproportionately increase the sentence to an extent as if to punish Mr Choi for having trafficked in a significantly larger amount of drugs.

22.  In HKSAR v Chung Ping Kun, CACC 85/2014, later adopted in HKSAR v Lau Tsz Ho, CACC 144/2014, the Court of Appeal has laid down a broad suggested guideline of levels of enhancement for drugs such as ice, heroin and cocaine below 1,000 grammes as follows:-

(1)  Up to 250 grammes 6 months

(2)  Between 250 and 500 grammes 6 months to 1 year

(3)  Between 500 and 1,000 grammes 1 year to 2 years

23.  In the present case considering all the circumstances, and the above suggested guideline, it was submitted that any enhancement adopted by the court to reflect Mr Choi’s previous similar records should not exceed 6 months.

24.  For simple possession of dangerous drug, according to HKSAR v Wan Sheung Sum, CACC 438/1999, the range of sentence is between 12 and 18 months’ imprisonment, subject to enhancement on the basis of the latent risk factor.

25.  Since the quantity of the drug involved in the present case was very little, the court was invited not to place much weight, if at all, on latent risk.

26.  The court was also invited to make reference to the case HKSAR v Yip Chun Hin (transliteration), DCCC 1008/2018 (Chinese Reasons for Sentence), where Deputy Judge Lin (as he then was) adopted a starting point of 6 months for simple possession of 0.15 gramme of cocaine in the case of a first offender.

27.  Although Mr Choi faces two separate charges, they are of similar nature and were discovered from one stop-and-search.  The court was urged to let the two sentences run concurrently with each other on application of the totality principle.

Sentence

28.  I have considered the mitigation submissions.

29.  Trafficking in a dangerous drug is a serious offence.

30.  For trafficking in 10 to 50 grammes of cocaine, the tariff sentence is 5 to 8 years.  For Mr Choi’s trafficking in 22.8 grammes of the drug, I shall adopt a starting point of 6 years’ imprisonment.  He has 4 previous drug-related convictions 2 of which were for trafficking; he was last released after serving a 56 months’ term for trafficking not more than 3 months prior to the commission of the present offences.  Clearly, he is a repeated offender of this type of offences, even at his relatively young age.  For extra deterrence and for protection of society, I shall enhance his starting point by 6 months.

31.  For his simple possession of 0.14 gramme of cocaine, I shall adopt a starting point of 8 months’ imprisonment and enhance it by one month for additional deterrence.  I do not add anything extra for the latent risk factor because of the small quantity involved.

32.  Mr Choi pleaded guilty in good time and therefore is entitled to the full 1/3 discount.  I can find no other mitigating factors of sufficient weight to warrant any further discount.

(Mr Choi, please stand)

33.  For Charge 1, Mr Choi shall go to prison for 4 years 4 months.  For Charge 2, Mr Choi shall go to prison for 6 months.  The two sentences shall be served concurrently with one another.