HKSAR v. CHIU MING YEUNG

HCCC49/2018

[2018] HKCFI 1571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 49 OF 2018

-----------------

-----------------

---------------------------------

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

---------------------------------

COURT: The defendant had pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug and was committed to the Court of First Instance for sentence. In sentencing I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drug involved, background of the defendant, and mitigation put forward on his behalf by learned defence counsel.

The facts of the case may be summarised as follows. The defendant was stopped when he was about to open the door of a residential flat. Upon search, two plastic bags containing a total of 1,339 grammes of a crystalline solid containing 1,192 grammes of methamphetamine hydrochloride and an electronic scale were found inside his sling bag. Under caution he said he had just bought the dangerous drug for reselling to others. No contraband was found in the flat.

I was told that the defendant is 41 years of age. He is divorced. He received education up to Form 2 and had worked as a kitchen helper, decoration worker and delivery worker.

The defendant does not have a clear record. On four occasions, he had been convicted of the offence of trafficking in dangerous drug. The first such conviction was in 1995. He was then convicted twice in 2005. The last such conviction was in 2010, for which he was sentenced to an imprisonment term of 5 years and 8 months. He was discharged in February 2016 and he committed the present offence in December the same year.

He had also been convicted once for managing a divan in 2005. The other offence which he had most frequently been convicted was possession of dangerous drug. He was convicted for this offence for 15 times. The other offences he had committed include robbery, theft, as well as offences related to dutiable goods and vice establishment.

Learned counsel for the defence Mr Yeung urged the court to take into account that the defendant had pleaded guilty at the earliest opportunity and that he is now remorseful. Realising that he is facing a long imprisonment term, the defendant is extremely worried that he will not be able to face a greatly changed world upon his discharge.

He asked the court to accept, which I do, that drug addiction is the major problem of the defendant. This imposed a substantial financial burden on the defendant. Still, he gave money from time to time to his mother, who is living alone. The father of the defendant had deserted the family when the defendant was 13 years old.

Mr Yeung said the defendant has a steady girlfriend and it was his plan to get married with her. For this purpose, he was in need of extra money on top of that required for his daily needs and expenses on drug. It was in these circumstances that when he was approached by the man who had been the regular supplier to him to carry drug for him, he failed to refuse.

The Court of Appeal held in AG v Tam Yi Chun, CACC 524/2011, that, in a case of trafficking in “Ice” where the narcotic content was over 600 grammes, the tariff in Abdallah, CACC 304/2008 is applicable. In Abdallah, it was held that, if the narcotic content is between 600 and 1,200 grammes, a sentence of 20 to 23 years should be considered.

I have to bear in mind the danger of mathematical progression causing injustice. I have to take into account that this is the fifth conviction of the defendant for the offence of trafficking in dangerous drug. He committed the present offence shortly after his discharge from prison.

Mr Yeung accepted that this is an aggravating factor, but he asked the court to keep the enhancement as low as possible and, in any case, not beyond the band of sentence as suggested in the tariff. He drew the attention of the court to R v Lau Tak Ming [1990] 2 HKLR 370, at page 386, in which Silke VP mentioned the aggravating factors which the sentencing judge may take into account within the suggested bands.

Having regard to the more recent cases like HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 and HKSAR v Wong Chi Ming, CACC 31/2010, I do not think what was said in Lau Tak Ming is meant to restrict the extent of enhancement in the manner as suggested by Mr Yeung.

I am duty bound to enhance the sentence by reason of the previous record. At the same time, I remind myself of the risk of excessive enhancement. In my judgment, it is appropriate in the circumstances of the case to enhance the starting point by about a year.

All in all, I adopt an ultimate starting point of 23 years and 9 months. The defendant pleaded guilty before a magistrate and for this he is entitled to a one-third discount.

Mr Yeung had mitigated for the defendant as best as he could. Having considered the whole circumstances, I am of the view that this is the extent of the discount the defendant is entitled to.

So, defendant, please stand up. For the reasons I have said, I sentence you to an imprisonment term of 15 years and 10 months.