HKSAR v. YIU MAN CHUN

DCCC 398/2024

[2024] HKDC 1883

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 398 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of trafficking in a dangerous drug.

Facts

2.  At about 945 pm on 27 September 2023, the defendant took a taxi bearing Registration No FV1734 (“the Taxi”)  driven by Mr Wong, taxi driver (“PW1”)  from Choi Ying Estate to Temple Street. 

3.  At about 950 pm on the same day, PC25265 (“PW2”)  and other police officers conducted an anti-crime operation and set up a police roadblock near the junction of Dundas Street and Tung On Street, Yau Ma Tei, Kowloon, Hong Kong (“the Roadblock”). 

4.  At about 1006 pm on the same day, PW2 intercepted the Taxi at the Roadblock. At the material time, PW2 saw the defendant carrying a sling bag (“the Bag”)  acting furtively.  PW2 subsequently conducted a body search of the defendant and an aluminium foil (“the Foil”)  containing four transparent re-sealable plastic bags containing a total of 12.9 grammes of a crystalline solid containing 12.9 grammes of methamphetamine hydrochloride (“the Ice”)  was found in the Bag which the defendant was carrying.  PW2 then arrested and cautioned the defendant. 

5.  DPC23053, PW3, later conducted a record of interview with the defendant.  Under caution, the defendant admitted, inter alia, the following:

a)  he had knowledge of the Ice;

b)  on 16 September 2023, he bought 21 grammes of Ice from a male called ‘Chan Keung’ at the park of Choi Ying Estate;

c)  he asked Chan Keung to separate the Ice into five bags and to place them inside the Foil;

d)  he placed the Ice inside the Bag; and

e)  he claimed that he had consumed one of the five bags of the Ice.

6.  The estimated street value of the Ice in September 2023 was around HK$6,372.60. 

7.  On 27 September 2023, the defendant was in possession of the Ice for the purpose of trafficking.

Criminal record

8.  Defendant has a criminal record, which shows that he has three previous charges of possession of dangerous drugs and has been sentenced to both imprisonment and the Drug Addiction Treatment Centre.

Mitigation

9.  Defendant is now aged 43, single and received education up to high diploma level.  He has an elder sister and his parents are in their sixties. He had been unemployed and relying on his family’s support since 2018 until April 2023.  He then started to work as a merchandiser. 

10.  The defendant is remorseful for what he had done.  He promises the court not to re-offend.  He would quit drugs and will take care of his parents.  He begs for the court’s leniency.

11.  Mr Kan in written mitigation refers me to the six-step approach to the sentencing of the offenders convicted of trafficking in a dangerous drug set out in the HKSAR v Herry Jane Yusuph[1] and the starting point for the subject quantity of Ice falls within the band of 7 to 11 years’ imprisonment as in HKSAR v Tam Yi Chun[2]. 

12.  It is submitted that the defendant is merely a courier and his culpability should be assessed at this level.

13.  Part of the Ice seized would be used by the defendant for his own consumption.  In support of this mitigation, the defence relies on the defendant’s statement to the police at scene under caution that he had consumed one of the five bags of the Ice, and the urine test, which was conducted on the defendant on 29 February 2024, showed a positive result in relation to amphetamine. 

14.  Mr Kan refers me to HKSAR v Kong Tat Lung[3] in respect of the discretion of the court to allow reduction from the starting point for a defendant’s own consumption and suggests a reduction of 8 months.

Sentence

15.  I have carefully considered all the written and oral submissions made by Mr Kan on behalf of the defendant in mitigation.

16.  The approach to be taken when sentencing an offender for trafficking in dangerous drugs is laid down in Herry Jane Yusuph and HKSAR v Islam Azharul[4].

17.  According to AG v Ching Kwok Hung[5] and Tam Yi Chun, the sentence upon conviction after trial for trafficking in methamphetamine hydrochloride (“Ice”)  between 10 and 70 grammes is between 7 years and 11 years’ imprisonment.  Arithmetically, for a courier trafficking in 12.9 grammes of Ice would therefore attract a starting point of 86 months.  The defence accepts this figure.

18.  The defendant has no similar conviction of trafficking.  Despite his drug-related convictions and the fact that he committed the present offence shortly after his release from the DATC to which he was sentenced in October 2022, I am prepared to deal with him leniently and do not consider his previous convictions as aggravating factors.

19.  On the issue of own consumption, the defence confirms that the defendant is not claiming that a significant portion of the subject Ice was for his own consumption.  The defence invites the court to decide the appropriate adjustment to the starting point if the suggestion of 8 months is not considered appropriate by the court.  The prosecution’s stance is that there is no evidence to rebut this issue.

20.  Taking into account, inter alia, that the defendant was at the material time a passenger inside a taxi journeying from Choi Ying Estate to Temple Street, the quantity of drugs seized, the drugs were packed in a number of re-sealable plastic bags which were kept inside the defendant’s bag and the street value of the Ice, I have no hesitation in rejecting the claim that a significant portion of the drugs was for his own consumption, if made. 

21.  Given the urine test of the defendant being positive to amphetamine, I am prepared to accept that a small part of the Ice may have been for his own consumption.  In deciding how much weight would be attached to the fact that part of the subject Ice may have been for his own consumption, I have considered the decisions in HKSAR v Wong Suet Hau[6] and also HKSAR v Choi Chun Wo[7]. 

22.  Having regard to all the circumstances of the arrest, the latent risk factor and the sentence for possession of drugs, I am satisfied that the starting point should be reduced by 6.5 months to 79.5 months.

23.  Giving the defendant full discount for his guilty plea, I therefore sentence him to 53 months’ imprisonment.