HKSAR v. CHU KWOK HUNG

DCCC 17/2022

[2022] HKDC 1485

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 17 OF 2022

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REASONS FOR SENTENCE

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1.  Mr Chu pleaded guilty before me to Charge 1 of Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134; and Charge 2 of Possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

2.  Particulars of Charge 1 are that he, on 12 August 2021, on a taxi bearing registration mark KF7873, outside Ground Floor, Block 1, Kwun Lung Lau, No 20 Lung Wah Street, Kennedy Town, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 24.0 grammes of a solid containing 20.5 grammes of cocaine.

3.  Particulars of Charge 2 are that he, on the same day, on the same taxi, at the same place, in Hong Kong, had in his possession a dangerous drug, namely 3.99 grammes of a solid containing 3.78 grammes of cocaine.

Facts admitted by Mr Chu

4.  On 12 August 2021, at around 12:38am, a taxi was parked at a roundabout outside Block 1, Kwun Lung Lau, Kennedy Town.  A male Chau got out from the right rear passenger seat and walked to a flowerbed in the middle of the roundabout.  Police approached the taxi and found Mr Chu at the left rear passenger seat.  Police instructed Mr Chu to get out.  Mr Chu suddenly threw one transparent resealable plastic bag and one green transparent resealable plastic bag onto the floor in front of his seat.  The former was later found to contain 24 grammes of a solid containing 20.5 grammes of cocaine (Exhibit 1); the latter was later found to contain 12 transparent resealable plastic bags containing a total of 3.99 grammes of a solid containing 3.78 grammes of cocaine (Exhibit 2).

5.  Mr Chu was arrested for trafficking in a dangerous drug.  Under caution, Mr Chu admitted the drug belonged to him for selling to others.

6.  Mr Chu had cash of $87 and one mobile phone with 9 SIM cards on him.

7.  During a cautioned VRI conducted on the same day, Mr Chu stated:-

(a) In the evening the previous day, while at home, Mr Chu received a phone call asking him to deliver drug to Kwun Lung Lau;

(b) He knew Exhibit 1 was drug and he took it to Kwun Lung Lau to people who would buy it;

(c) Exhibit 2 contained cocaine and he took it out from his home for his own consumption;

(d) He had consumed ICE for 3 to 4 years and he would consume it every day; and

(e) He had used his friend’s mobile phone to contact the person who asked him to deliver the drug as his own mobile phone was out of battery at the time.

8.  The estimated street value of Exhibit 1 was around $35,136; the estimated street value of Exhibit 2 was around $5,841.

9.  At the material time, Mr Chu was in possession of Exhibit 1 for the purpose of unlawful trafficking.

Criminal record

10.  Mr Chu has 10 previous convictions 3 of which are similar.

Antecedents statement

11.  Mr Chu is aged 30 (almost 29 at the time of the offences), single, educated to F4 level, was a casual delivery worker prior to arrest.  Mr Chu lived with his mother and girlfriend in public housing in Lam Tin.

Mitigation

12.  Mr Mohammed Shah of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chu.  The following is a summary of the mitigation submissions.

13.  Prior to his arrest, Mr Chu was working as a casual delivery worker for a restaurant earning $300 to $400 a day.  Before being placed in remanded custody, Mr Chu was living with his mother (late 60s) in public housing.

14.  Mr Chu admits he was a drug addict prior to arrest and he knew Exhibit 1 was cocaine all along.

15.  For Charge 1, the sentencing guidelines are the same as those for heroin (HKSAR v Abdullah [2009] 2 HKLRD 437): for 10 to 50 grammes, the sentence is 5 to 8 years.

16.  For trafficking in 20.5 grammes of cocaine, it was submitted a starting point of 5 years and 9 months’ imprisonment would be the mathematically correct figure.  After the ⅓ discount for the plea of guilty, the sentence would be 46 months subject to any further discounts the court may allow (HKSAR v Lam Hor Wai, DCCC 66/2016).

17.  For Charge 2 of possession, there is no strict tariff.  However, the Court of Appeal in HKSAR v Mok Cho Tik [2001] 1 HKC 261 has said that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months.

18.  However, the Court of Appeal has also said in numerous cases that the starting point could be revised upwards to take account of the latent risk factor.  Although the urine test for specimens collected 2 days after arrest gave a negative result for cocaine, it was submitted that the result was marginal as the figure was 998/1000.

19.  On the topic of how a court should apply the principle of totality on the overall sentence of the two charges, Mr Shah referred to HKSAR v Or Wai Tong, CACC 250/2009, to remind the court that it would not be right to pass an overall sentence greater than that which would have been passed had all the drugs been the subject of a single trafficking charge.  In this respect, it was submitted that the whole quantity of cocaine being 24.28 grammes, the mathematical starting point would have been about 6 years with the corresponding sentence after the ⅓ discount being about 4 years.

20.  The mother and one of the elder sisters of Mr Chu are in court to give their support.

21.  Mr Shah submitted 3 mitigation letters written in Chinese by respectively Mr Chu’s mother and his two elder sisters.  The contents are generally that Mr Chu placed his trust in bad peers and became addicted to drugs and turned to crime; that he is now remorseful and wants to start anew. All the writers asked for a lenient sentence on Mr Chu’s behalf.

Sentence

22.  Because of the weight of the cocaine, I adopt a starting point of 69 months’ imprisonment for Charge 1.

23.  For Charge 2 of possession, I adopt an initial starting point of 12 months. Considering the number of packets found, Mr Chu’s negative drug test result for cocaine and his earning of legitimate income on a casual basis only, I enhance that starting point by 3 months to take account of the latent risk factor.  The final starting point under Charge 2 is therefore 15 months.

24.  Mr Chu pleaded guilty in good time and he shall be entitled to the full ⅓ discount.  There are no other mitigating factors that will have the effect of lowering the sentence further.

25.  I will apply the totality principle in arriving at a final sentence for the two charges bearing in mind that the sentence should not be longer than one where all the drug in the present case had been the subject of trafficking.  In that connection, if all the drug had been the subject of trafficking, the starting point on a strict mathematical assessment would have been just under 73 months resulting in a sentence of about 48.5 months’ imprisonment after plea.

26.  I impose the following sentences.

(Mr Chu, please stand)

27.  For Charge 1, Mr Chu is sentenced to 46 months’ imprisonment.

28.  For Charge 2, Mr Chu is sentenced to 10 months’ imprisonment.

29.  I order that one month of the sentence on Charge 2 do run consecutively to the sentence on Charge 1, making an aggregate sentence of 47 months’ imprisonment.