HKSAR v. TO CHUN HIN

HCCC 344/2018

[2019] HKCFI 656

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 344 OF 2018

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

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COURT:

The two charges were committed on the same date, that is 5 December 2015, and at the same location save that one was outside Flat F and the other one was at Flat F. The full address is Flat F, 21st Floor, Tower 9, Park Signature, No. 68 Kung Um Road, Yuen Long.

In Charge 1 which was outside Flat F, you admitted to unlawfully trafficking in 26.12 grammes of a solid and a powder containing 23.92 grammes of cocaine. In Charge 2 which was inside Flat F, you admitted to unlawfully trafficking in 978.37 grammes of a solid and powder and 830 millilitres of a liquid containing 909.81 grammes of cocaine.

At around 7.05 pm on 5 December 2017, the police officers saw you leaving Flat F. They later came to know that this was your residence. In addition, an electricity bill for the address was in your name. You were intercepted by the police and searched, and in a pouch carried by you were some drugs in one plastic bag and inside both socks were other drugs. You were also holding a rubbish bag and in the rubbish bag contained small amounts of drugs. Keys were also found on your person. The drugs found on your person and in the rubbish bag formed the drugs in Charge 1.

Using the keys found on your person, the police gained access to the flat and also executed a search warrant. Inside the flat, in a suitcase, in a pile of rubbish on the floor, on the kitchen bench, in the cabinet above the kitchen were found numerous apparatus connected with manufacturing of dangerous drugs, for example, plastic spoons, boxes of soda powder, electronic scales, sealing machine, metal pots, a plastic bowl, a hammer, tablespoons, a sieve and porcelain cups. In the range hood of the cooker were also found traces of drugs.

The quantity of drugs stated in Charge 2 were found scattered in the flat. Upon arrest for both of these offences that is outside the flat and inside the flat, you stated that the drugs were for your own consumption.

Your DNA was found on a hammer and four of the porcelain cups. Sorry, I should mention also some empty resealable plastic bags and air freshener were found from the kitchen and a tenancy agreement in your name.

The estimated street value of the dangerous drugs seized in powder form was $1,086,858 or in crack form $1,170,231.

Despite the flat clearly evidencing a centre for manufacturing of dangerous drugs, the prosecution has accepted your plea of guilty to trafficking in dangerous drugs. You have not pursued your allegation that part of hundred-odd grammes of the drugs were for your own consumption.

You are aged 21, single and are of clear record. You have attained Form 6 secondary education. Your counsel, Mr Billy Yau, has submitted a thorough mitigation on your behalf and has informed me of your background. In short, you are the only child of parents who divorced when you were a toddler of 3 years old. Custody was granted to your father but as a result of long working hours, you were entrusted to your paternal grandparents.

A year before this offence was committed, however, your grandmother passed away and as a result of lack of parental supervision, you started to mix with undesirable peers. Initially, your peers offered you drugs for free, then as is expected, developed a dependency and later the drug trafficker enticed you to help them by offering you monetary rewards.

The mitigation advanced on your behalf is that you were recruited by the drug traffickers to help in the drug-trafficking trade as a courier. They had used your name to rent the premises.

I have received three letters of mitigation. That is from your parents and yourself. All three of them have said the same in that it is only recently since the passing of your grandmother that you turned astray when otherwise you were all along a law-abiding and hardworking young man. You had worked, prior to your arrest, as a warehouse worker earning $15,000 per month.

It is clear to me from your early plea of guilty that you have shown the court your remorse. That is the strongest and only mitigating factor in this case, and for that, it warrants a one-third discount from the starting point of sentence.

Defendant, as your counsel Mr Yau has rightly stated, the leading cases for trafficking in the drug cocaine, is that of Lau Tak Ming and Abdallah.

Defendant, for Charge 1, you were trafficking in 23.92 grammes of cocaine. On that charge, had you been convicted after trial, I would have taken a starting point of 5 years and 9 months’ imprisonment. Giving you a full one-third discount, you will be sentenced to 3 years and 10 months for Charge 1.

On Charge 2, the total amount of cocaine was 909.81 grammes of cocaine. Had you been convicted after trial, an appropriate starting point would be one of 21 years and 6 months’ imprisonment. Giving you the full one-third discount, that term shall be reduced to 14 years and 4 months’ imprisonment.

In sentencing you, defendant, I consider the principle of totality and if I add up both quantities of drugs in Charge 1 and 2, the total would be 933.73 grammes of cocaine and had you been convicted after trial, I would have still taken the same starting point that is 21 years and 6 months’ imprisonment which on a one-third discount would warrant 14 years and 4 months’ imprisonment.

In the circumstances, I order Charge 1 to run concurrent to Charge 2. Therefore that means you shall be sentenced to 14 years and 4 months’ imprisonment.