HKSAR v. CHOI CHUN WO

DCCC 102/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 102 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of trafficking dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Summary of facts

2.  On 6 December 2016, at around 12.15 pm the defendant was stopped at the Customs Arrival Hall, Lo Wu Control Point.  Upon search, six plastic bags containing a total of 5.33 grammes of crystalline solid containing 5.26 grammes of “Ice” were found from the defendant’s left front jeans pocket.

3.  The estimated value of drugs was HK1,785.55.

4.  He was arrested and under caution at the scene, he said that the “Ice” was for his own consumption and he bought it for RMB500.

5.  In a video record of interview, defendant further said that he bought the “Ice” from Ah Keung and he had consumed about 0.2 to 0.3 grammes of it.  He consumed “Ice” about three times a day, and each time for about 0.3 or 0.4 grammes.  He started to take “Ice” for a year.  He was a logistics worker earning about $200 to $300 per day, earned about $7,000 to $8,000 a month on average.  At the time of arrest, he had three mobile phones, four SIM cards, HK$23 and RMB31.5.

Criminal record

6.  He had been sentenced by the court for eight occasions from 1995 to 2014 for 13 offences.  Two offences were possession of dangerous drugs in 1995 and 1996.

Mitigation

7.  He is now 44 years old.  Mother passed away.  Father is looked after by his younger brother.  In 2010 he married, but has been separated since 2015. He lives in public housing estate with a monthly rent of about $900, but was paid by his younger brother.

8.  The drug in question was all for his own consumption.  He worked as a delivery worker.  A couple of days before the offence, he was paid $2,000.  He provided his employer Mr. Lam’s contact number and address in Sheung Shui to the prosecution to verify his employment.

Sentence

9.  During the adjournment, the prosecution had an opportunity to furnish a statement from Dr. Lam, a consultant psychiatrist at Castle Peak Hospital, and to investigate the information supplied by the defence to confirm his employment with Mr. Lam, and also to provide the movement record of the defendant from the Immigration Department.

10.  The police have visited the address provided by the defence and found that Mr. Lam was not the current occupant.  The defendant was arrested in December 2016.  There was no information as to when the current tenant started his tenancy.  The prosecution and the defence agreed that the result of the investigation was neither here nor there. 

11.  The defence refer me to a case of HK SAR v Ngai Ho Ting, CACC 417/2011, that the applicant was charged for trafficking of 5.09 grammes of “Ice”.  He bought it in Mainland for RMB1,500 and he would consume them over a period of six months.  The estimated street value was $3,339.  On appeal, the court confirmed that a starting point of 5 years.  After one-third discount, a further discount of 13 months was allowed.

12.  As to HKSAR v Chow Kam Lung, CACC 68/2010, it was also an appeal on the point of self-consumption issue.  Further deduction of sentence was allowed after one-third discount.

13.  However, in the recent authority of HKSAR v Liu Ming Sze, CACC 103/2016, there was a detailed discussion as to the percentage of discount from the starting point.  At paragraph 29 of that judgment, it said that: -

“The discount from the starting point taken for sentence that the judge afforded the applicant to reflect an element of self-consumption was within her discretion in sentencing.”

14.  In the present case, if his assertion of self-consumption of the drugs, in part or in whole, was accepted by this court, he is expecting a further discount of sentence in one way or the other. 

15.  The defendant had an opportunity to consider his position whether to give evidence as to his assertion of self-consumption.  After one week of adjournment, he reaffirmed his position that he did not wish to give evidence, nor did he provide any documents to support his own case.

16.  In determining the issue of self-consumption, I should have regard to the case of HK SAR v Wong Suet Hau (2002) 1 HKLRD 68, which set out different factors for consumption.

17.  As to the dosage, according to what he said in the video interview, 5.26 grammes of “Ice” would last him for about five days.

18.  Under the heading of daily unit dosage, at page 3 of the report, Dr. Lam said that the chronic abuser commonly used 250 mg to 2 grammes a day.  That means it was possible for the defendant to consume 5.26 grammes of drugs in about five days. 

19.  The urine test conducted in CSD on 8 December 2016 indicated that the test result was “Ice”-positive.  This goes to support the defendant’s claim that he was a drug abuser.

20.  The defendant also said that, out of the six packets of drugs, one packet was open:  an “Ice” content of 1.99 grammes.  If the court refused to accept that the other five packets were for his self-consumption, at least one packet was for himself.

21.  Summary of facts and the photo showed that the five packets were transparent resealable plastic bags and each wrapped with a piece of tissue paper, while the remaining transparent resealable plastic bag was without tissue wrapping.  That bag was open as well (“the open packet”).

22.  The defendant said in the video record of interview that he bought the “Ice” from Ah Keung and had consumed about 0.2 or 0.3 grammes of it.  That quantity of that open packet of “Ice” weighed 1.99 grammes.  The rest of the five packets weighed from 1 gramme to 1.2 grammes.

23.  I notice from the movement record there was a consistent pattern that the defendant returned to China to stay overnight.  The month prior to 5 December, he never stayed in Hong Kong for more than two nights.  There may be some truth that the “open packet” was for his own consumption.

24.  As to his staying overnight in China, I brought this to the attention of the defence.  The defence was clearly aware of this piece of information.  The defendant said that he picked up the “delivery” late and was required to stay in China for a night at his friend’s place.

25.  In the record of interview, he said that he took drugs either in the toilet or in the hostel, not at his friend’s residence.  I have doubt that he had friends that would put him up on such a regular basis.

26.  As said before, the movement records show that he stayed in China most of the time, sometimes in consecutive nights. 

27.  My question to ask:  why did the defendant need to bring five days’ dosage to Hong Kong?  There was no good reason for him to bring in more drugs than he needed to.  Any surplus to take back to China increased his risk for being arrested at both the Hong Kong and China border.  To this end, I refuse to accept that the whole of the six packets were for his own consumption.

28.  However, I accept that there was a possibility that “the open packet” of 1.99 gramme of “Ice” was for the defendant’s own consumption.  I will allow discount for this “open packet”.

29.  For the present offence, which was “Ice”, the sentencing guideline of AG v Ching Kwok Hung [1991] 2 HKLR 125 should apply.  For the quantity of 5.26 grammes, it falls into the sentencing bracket of 3 to 7 years.

30.  Mr. Fung suggests a starting point between 4½ to 5 years.  I disagree. 

31.  The correct starting point should be 5 years 6 months.  I allow 6 months’ reduction from the starting point.  It comes to 5 years.  I further allow one-third discount.  It arrives at 40 months. 

The sentence

32.  The defendant serves a sentence of 3 years 4 months.