HKSAR v. HUI CHUN YIU

HCCC 119/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 119 OF 2017

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

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COURT: The defendant, Hui Chun-yiu, pleaded guilty to one count of trafficking in a dangerous drug and admitted the facts pertaining to the charge.

The offence took place on 16 April 2016, at the junction of Dundas Street and Tung On Street, Yau Ma Tei, Kowloon. Two kinds of dangerous drugs were involved, namely 32.72 grammes of a mixture containing 26.36 grammes of heroin hydrochloride and 13.4 grammes of a crystalline solid containing 12.5 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.

At 10 pm on 16 April 2016, police officers stopped a taxi at the junction of Dundas Street and Tung On Street, Yau Ma Tei. The defendant was the only passenger sitting in the rear of the taxi. One of the officers saw the defendant throw a paper box and one foil packet under the seat. The paper box was retrieved and searched. The following items were found:

(i) One plastic bag containing 28.1 grammes of a mixture containing 22.7 grammes of heroin hydrochloride.

(ii) One plastic bag containing 0.52 grammes of a mixture containing 0.4 grammes of heroin hydrochloride.

(iii) One plastic bag containing 2 grammes of a mixture containing 1.59 grammes of heroin hydrochloride.

(iv) One plastic bag containing 1.8 grammes of a mixture containing 1.44 grammes of heroin hydrochloride.

(v) One plastic bag containing 0.3 gramme of a mixture containing 0.23 grammes of heroin hydrochloride.

The foil packet was found to contain 13.4 grammes of a crystalline solid containing 12.5 grammes of methamphetamine hydrochloride.

The defendant was arrested. He remained silent under caution, both upon arrest and in a subsequently held video-recorded interview. At the time of his arrest, the defendant had cash $20,962 and one mobile phone on him.

The taxi driver stated that he picked up the defendant at the junction of Shan Tung Street and Fa Yuen Street in Mong Kok. The defendant told him that he wanted to go to Reclamation Street near Dundas Street. They were then stopped by the police when they were on their way.

The estimated street value of the dangerous drugs seized was $28,567.

The defendant was a CSSA claimant at the time of his arrest. He received, in April 2016, a subsidy of $9,194. The defendant is now 38 years of age, locally born. He received education up to Secondary 4 in Hong Kong. The defendant is a divorcee and he resided with his parents and siblings in Kwun Tong.

The defendant has a total of 23 previous convictions arising out of 18 matters. The earliest one dated back to 1996. He had been convicted on four occasions for possession of dangerous drugs and twice for trafficking in dangerous drugs in May and November 2001.

Mr Raffell told me in mitigation that the defendant has previous convictions for possession of dangerous drugs going back to 1996. He is now serving 26 months’ imprisonment for one count of burglary. The sentence was passed on 14 March 2017. The burglary predated the present case but the defendant’s involvement with the burglary case only came to light after the defendant was arrested for the present case. Mr Raffell asked me to bear in mind the principle of totality and make the sentence for the present case partly consecutive to the sentence that the defendant is now serving.

Mr Raffell told me 7 grammes of ‘Ice’ and 7 grammes of heroin were intended for the defendant’s own consumption. Mr Raffell accepted that 7 grammes was only a rough estimate and it was a future intention on the part of the defendant. It was not something that would definitely happen.

The defendant gave evidence in support of his claim that 7 grammes of ‘Ice’ and 7 grammes of heroin were intended for his own consumption. That quantity would last him for about five days. The defendant accepted that 7 grammes was a rough estimate and he would sell the drugs if someone wanted the drugs. He accepted that all or most of the drugs would be sold if someone wanted the drugs, ie, if there was a demand. The defendant said, on the night in question, he just bought the drugs when he was stopped by the police.

I have considered the evidence given by the defendant and submissions by counsel on the issue of whether a substantial part of the dangerous drugs seized were intended for the defendant’s self-consumption.

The defendant’s claim that he had just received the drugs does not sit well with the fact that he had on him over $20,000. He had cash more than twice the amount of the CSSA payment he received in April 2016 after the purchase of the drugs. The defendant was not on his way home when he was stopped by the police. He resided in Kwun Tong. The facts show that he was on his way to Reclamation Street and Fa Yuen Street.

On the other hand, the defendant has four previous convictions for possession of dangerous drug. His last conviction for possession of dangerous drug was in 2015. I also accept the defendant’s evidence that he was addicted to heroin and ‘Ice’ at the time.

On the evidence before me, I am prepared to accept that a substantial amount of the ‘Ice’ and heroin seized were intended for the defendant’s own consumption, although not necessarily as many as 7 grammes of each of the drugs as contended by the defendant. The fact that the defendant intended to consume a substantial part of the dangerous drugs found on him is a factor that would make a difference to sentence.

I bear in mind that possession of dangerous drugs itself carries a term of imprisonment and in the present case, for the heroin and ‘Ice’ that the defendant intended to be used for his own consumption, there was a latent risk factor as the defendant admitted he was prepared to sell all or most of the drugs if there was a demand. In my judgment, the self-consumption element that I accept merits a reduction of 10 per cent from the starting point.

This case concerns a cocktail of dangerous drugs, ie, 12.5 grammes of ‘Ice’ and 26.36 grammes of heroin. I adopt the combined approach in sentencing. Of the two kinds of dangerous drugs in question, ‘Ice’ is more potent than heroin. The ‘Ice’ in question calls for a starting point of 7 years’ imprisonment, applying the tariffs in HKSAR v Tam Yi Chun, CACC 524/2011.

The fact that the defendant was trafficking in two kinds of dangerous drugs, ie, a cocktail of ‘Ice’ and heroin, is an aggravating factor because, in such a situation, the defendant was able to cater for a far wider market than a trafficker trafficking in only one drug. The defendant would be able to cater for addicts who, like the defendant, would require both ‘Ice’ and heroin.

The presence of 26.36 grammes of heroin, in my judgment, calls for an upward adjustment of 6 months and that would bring the starting point to 7½ years’ imprisonment.

The defendant has two previous conviction records for trafficking in a dangerous drug. He was sentenced to 3 years’ imprisonment for trafficking in a dangerous drug in 2001.

In my judgment, the defendant is a repeat offender for drug trafficking offence; an upward adjustment of 6 months is called for and that would bring the 7½ years’ imprisonment to 8 years, ie, 96 months.

The defendant is entitled to one-third reduction for his guilty plea which will bring his sentence down to 5 years and 4 months, ie, 64 months. For the self-consumption element, I am prepared to give a reduction of 10 months. That would bring the sentence further down to 4½ years’ imprisonment, ie, 54 months.

I bear in mind the totality principle. I order 6 months of the 4½ years’ imprisonment shall run concurrently with the sentence that the defendant is now serving.