HKSAR v. LI YUNG SUN

HCCC 194/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 194 OF 2015

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

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COURT: The defendant has been convicted after trial on one count of trafficking in a dangerous drug. The Particulars of Offence provide that on 25 August 2014, at Cheung Sha Wan Road, Sham Shui Po, Kowloon in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 13.3 grammes of a crystalline solid containing 12.8 grammes of methamphetamine hydrochloride, commonly known as the ‘Ice’ drug.

Very briefly, at around 2.27 am in the early morning of 25 August 2014, PC6601 together with two colleagues, Sergeant 58179 and PC33383 were on foot patrol in the Sham Shui Po area. He saw two men walking along Nam Cheong Street, across Cheung Sha Wan Road, towards Apliu Street. These men were about five metres apart, walking at a very fast pace. PC33383 asked them to stop. The man in front, who was the defendant, then dropped his right hand and discarded something white in colour onto the ground. The defendant then tried to run away but was apprehended shortly thereafter by the police officers.

The object thrown on the ground was a piece of white tissue paper, containing a transparent resealable plastic bag, which in turn contained transparent crystalline object, suspected to be dangerous drug. Upon subsequent examination by a Government Chemist, the substance was confirmed to be 13.3 grammes of a crystalline solid containing 12.8 grammes of methamphetamine hydrochloride.

It was the prosecution case that the defendant possessed the dangerous drug in question, at least in part, for the purpose of trafficking.

The dangerous drug in question had the average retail price of HK$5,666.

By way of personal background, the defendant is 52 years of age. He was born in China in March 1964. I was told that he was educated up to primary level in Hong Kong. He was a hawker at the time of his arrest.

The defendant has 35 previous criminal convictions, 16 of which are drug-related, including four previous convictions for trafficking in dangerous drugs or possession of dangerous drugs for the purpose of unlawful trafficking.

Mr Roderick Wu, counsel for the defendant, submitted that although he had no instruction on the precise quantity, a significant part of the dangerous drug seized in this case was for the defendant’s self-consumption. I shall deal with this aspect of mitigation later.

The defendant has been convicted after trial on one count of trafficking in a dangerous drug. The drug involved is 13.3 grammes of a crystalline solid containing 12.8 grammes of methamphetamine hydrochloride. The offence was committed on 25 August 2014, ie, after the Court of Appeal had handed down its Judgment in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 on 9 June 2014, which sets out revised tariffs for trafficking in the ‘Ice’ drug.

In the Tam Yi Chun case, the Court of Appeal held that for trafficking in between 10 and 70 grammes of the ‘Ice’ drug, the proper sentence to be imposed after trial should be 7 to 11 years’ imprisonment.

In my view, following the guidelines in the Tam Yi Chun case and based on the quantity of the narcotic involved, the proper starting point for sentence in the present case should be 7 years and 2 months’ imprisonment.

The jury verdict precludes a finding that the drug in question was wholly for the defendant’s own consumption. However, it does not preclude a finding that the drug was possessed only partly for the purpose of trafficking. Indeed, during the cross-examination of the defendant, it was expressly put to him by the prosecutor that: “The real situation is that some of it was for your own use and some for sale”.

Very fairly, Mr Laskey accepts, for the purpose of sentence, that 10 to 15% of the drug in question was for the defendant’s own consumption. Based on the criminal record of the defendant, I have no difficulty in accepting that the defendant was, at the material time, a habitual user of the drug and a significant portion of the drug in question was for his self-consumption.

In the premises, I am satisfied that the defendant is entitled to a discount of 9 months from the starting point taken for sentence, a discount of roughly 10%, to reflect the element of self-consumption of the dangerous drug [see: HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121].

The defendant is accordingly sentenced to 6 years and 5 months’ imprisonment.