HKSAR v. CHOI CHUNG MING

HCCC 303/2017

[2018] HKCFI 1399

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 303 OF 2017

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

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COURT:

Today the defendant has pleaded guilty to the one charge contained in the indictment, namely trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The charge alleges that on 29 March 2017, outside 128 Tai Po Road, Sham Shui Po, Kowloon in Hong Kong, he unlawfully trafficked in a dangerous drug, namely 375.16 grammes of a crystalline solid containing 340.07 grammes of methamphetamine hydrochloride, a drug commonly known throughout Hong Kong as “Ice”.

The defendant has admitted a Summary of Facts prepared by the prosecution in support of that charge. That Summary of Facts is to the effect that in the early hours of 29 March 2017, police officers apprehended a motor vehicle at a roadblock outside 128 Tai Po Road, Sham Shui Po in Kowloon.

The defendant was the driver and sole occupant of that motor vehicle.

The motor vehicle was searched, and in the trunk police officers found a paper bag inside of which were three black plastic bags. These in turn contained resealable plastic bags in which was a substance which was suspected to be a dangerous drug.

The defendant was arrested, and when cautioned, as was his right, he remained silent.

The vehicle owner, when interviewed, confirmed that he was a friend of the defendant and had lent the motor vehicle to him some two months before. He had no knowledge of the suspected dangerous drugs.

The police officers’ initial suspicions proved to be correct. The Government Chemist subsequently analysed the contents of the resealable plastic bags and determined that it was 375.16 grammes of a crystalline solid containing 340.07 grammes of methamphetamine hydrochloride.

It was accepted in the Admitted Facts that this quantity of dangerous drugs had a street value in Hong Kong in excess of $105,000.

Late in the evening of 29 March 2017, the defendant was formally interviewed. He gave an account which was consistent with his innocence. He now accepts and acknowledges by his plea of guilty that the account was a fiction and that he was in possession of those dangerous drugs for the purposes of trafficking.

When apprehended, the defendant was in possession of some HK$68,000 in cash and three mobile telephones.

The defendant’s background: an antecedents statement has been prepared by the prosecution and submitted to the court. In the main part it is not challenged on behalf of the defendant.

He was born on 9 October 1973. He is now aged 44 years. He was educated up to Form 3 level, and was said to have been a salesman of second-hand mobile telephones at the time of his arrest.

The defendant has an extensive criminal history almost exclusively associated with dangerous drugs. It is apparent, and this has been confirmed in mitigation, that he was and is a drug addict, and has been for many years.

In 1994 he was sentenced to drug addiction treatment centre for simple possession of dangerous drugs. In 1996 he was again dealt with for possession of dangerous drugs, and again in 2003. There was a period of some seven years when there was no offending. However, on 4 July 2005, he was sentenced to be imprisoned for 11 years for an offence of drug trafficking. He pleaded guilty to that charge. The drug concerned was what is commonly referred to as “Ecstasy”. I am advised that the quantity of drugs in that charge was something of the order of 10,000 tablets, a significant quantity by any reckoning.

Subsequent to his release from imprisonment, he was again dealt with on 2 September of 2015, again for possession of dangerous drugs. He was last released on 29 December 2015.

On his behalf, Mr Chan has readily conceded that there is very little in the way of mitigation that can be advanced in the circumstances of this case.

I have said earlier it is to the credit of Mr Chan and those instructing him that they have managed to persuade the defendant to take the course that he has. The evidence that was advanced in the prosecution case was, in my opinion, almost overwhelming.

Returning to the matters referred to by Mr Chan, he has indicated that whilst the defendant, generally speaking, enjoys reasonable health, it is impacted in some respects by his past history of drug consumption. He has also referred me to the fact that his elderly mother is suffering from a depressive condition which is possibly directly related to the defendant’s circumstances.

The dangerous drug with which the defendant has been convicted of trafficking has been dealt with on many occasions by the Court of Appeal in Hong Kong. In HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, guidance was provided to sentencing judges in respect of sentencing those convicted after trial of trafficking in methamphetamine hydrochloride.

For the quantity of methamphetamine hydrochloride in the instant case, the Court of Appeal’s guidelines would indicate that before enhancement of any sentence for aggravating factors, to which I will return, a starting point after trial of 15 years and 8 months’ imprisonment would apply. That calculation, I might say, has been confirmed by Mr Richmond on behalf of the prosecution, and Mr Chan.

That brings me then immediately to the question of enhancement. That the defendant is a drug addict and has a number of convictions for possession of dangerous drugs is not, to my mind, per se a significant aggravating factor as requires enhancement.

However, in the instant case, the fact that the defendant has previously been convicted of trafficking in a dangerous drug, and in particular in trafficking in a very significant quantity of dangerous drugs, this, in my mind, requires an enhancement of the sentence in this case.

In HKSAR v Lau Tse Hung(?) [2015] 1 HKC 491, the Court of Appeal considered the levels of enhancement for repeat offenders. They endorsed their earlier decision in HKSAR v Chung Ping Kan(?) [2014] 6 HKC 106, which suggested that a broad guideline for enhancement of starting points for sentencing for trafficking in dangerous drugs for amounts below 1,000 grammes, and in particular amounts of 250 to 500 grammes, an enhancement of 6 months to 12 months’ imprisonment would be appropriate.

In the instant case, the amount of drugs concerned is 340 grammes, and applying that guidance, I determine that the amount of the enhancement would be one of 8 months.

That then brings us back to the starting point for sentence before any discount is to be applied.

Based on my calculations - again, these have been confirmed by Mr Richmond and Mr Chan - the starting point after trial is one of 16 years and 4 months’ imprisonment.

The discount to be applied: in HKSAR v Ngo Van Namh [2016] 5 HKLRD 1, the Court of Appeal gave guidance in this matter:

It is relevant to consider, when considering the amount of discount to be applied, the chronology of events leading up to his plea of guilty. The defendant was committed to this court for trial on 28 August 2017. He indicated to the magistrate, and he was represented on this occasion, that he intended to plead not guilty.

The matter was then referred to this court. It came before the listing judge, and again the defendant was represented and, I am advised, by the same solicitors who represent him today. On that occasion, it was indicated that he intended to plead not guilty. There was a subsequent case management hearing on 19 January 2018. The defendant was represented by Mr Chan, who represents him today. The prosecution was represented by Mr Richmond.

This was an extensive hearing where the details of the witnesses were canvassed in some length. It was clearly indicated that the defendant would plead not guilty. It has only been in the last two weeks - indeed, less than two weeks - that the defendant has indicated a change of heart and that he intends to plead guilty.

Mr Chan, on his behalf, has sought to persuade me, based on the observations of the Court of Appeal, that a discount in excess of 20 per cent, albeit a small additional amount, should be applied.

With respect, having considered the judgment of the Court of Appeal and their observations, I am not so persuaded. The chronology that I have just referred to clearly indicates to me that over a significant period of time, the defendant has had the opportunity to change his plea from one of not guilty to guilty. Had he done so at an earlier time then, in my opinion, he may be able to have persuaded me that a discount in excess of 20 per cent would be appropriate, and this plea of guilty is, to my mind, at the eleventh hour, and in those circumstances, I am unable to give to him any discount beyond the 20 per cent indicated by the Court of Appeal.

That being the case, from a starting point of 16 years and 4 months’ imprisonment, the appropriate sentence, after a discount of 20 per cent, is imprisonment for 13 years, and that is the sentence that I will impose.