HKSAR v. CHUNG KA HO

HCCC474/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 474 OF 2011

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HKSAR
v
Chung Ka-ho

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Before: Hon Barnes J

Date: 23 March 2012 at 11.02 am

Present: Mr Vincent Wong, SPP of the Department of Justice, for HKSAR
Mr Kevin Barry Egan, instructed by Messrs Lam & Co, for the Accused

Offence: (1) to (3) Trafficking in a dangerous drug (販運危險藥物)

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

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COURT: The defendant, Chung Ka-ho, was charged with three counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The Summary of Facts admitted by the defendant disclose that on 3 August 2011 a team of Customs officers were conducting an anti-narcoticsoperation near the entrance to the mezzanine level of the car park of a building called The Apex, situated in Wo Yi Hop Road, KwaiChung.

The officers saw the defendant acting in a suspicious manner and a search was conducted on him, whereupon a packet of suspected dangerousdrug was found inside his left trousers pocket. An analysis later confirmed the substance to be 0.66 grammes of a solid containing0.45 grammes of cocaine.

One of the officers immediately arrested the defendant for trafficking in a dangerous drug and cautioned him.

Under caution the defendant admitted that the substance was cocaine and that it was for his own consumption. The defendant also disclosedthat he had drugs at his home. That is the 1st count.

The officers then went to the defendant’s home which was situated on the 16th Floor of Tower One of The Apex. After gaining entryby using the defendant’s keys, the officers found a female sleeping inside. They also found some suspected dangerous drugs packedinside nine Ziplock bags and four bank notes. Apart from the substance the officers also found two digital scales and two knives.One of the scales and one of the knives had traces of cocaine on them.

Regarding the substance found, they were later confirmed to be a total of 50.5 grammes of a solid containing 36.68 grammes of cocaine.Further, a substance including caffeine, lignocaine and phenacetin with traces of cocaine were found inside one of the bags.

Under caution in relation to the dangerous drugs found inside the premises, the defendant said the female was his girlfriend and sheknew nothing about the dangerous drugs found there. The defendant also volunteered information that he had dangerous drugs in hisprivate car parked in the car park of The Apex. That is the 2nd count.

The defendant then brought the officers to a private car with registration No. PF1982. Inside the car the officers found a sock concealedin the inner part of the steering column. Inside the sock there were five Ziplock bags which in turn contained 71 small packets.Suspected dangerous drugs were found inside the small packets.

Subsequent analysis showed that a total of 14.5 grammes of a solid containing 10.72 grammes of cocaine and a mixture of caffeine,lignocaine and phenacetin with traces of cocaine were present.

Under caution for the dangerous drugs found inside the car, the defendant admitted that they were cocaine and that he had bought thedangerous drugs and concealed them in the car. He claimed to have the cocaine for his own consumption and his girlfriend had nothingto do with them. That is the 3rd count.

The estimated retail value of all the dangerous drugs seized, that is 65.66 grammes of a solid containing 47.85 grammes of cocaine,was HK$67,170. The defendant admitted that he had all the dangerous drugs for the purpose of unlawful trafficking.

The Background and Mitigation

The defendant is now 29 years of age. He had four previous convictions but none similar. He is the only child of his parents who divorcedeach other when the defendant was only 7 years of age.

Mr Kevin Egan, counsel for the defendant, informed me that at the time of the offence the defendant was working in a coffee companyas a coffee mixer. I have a letter from his employer who not only praised the defendant’s honesty and hard-working attitude, theemployer also indicated to me that she would reserve the post for the defendant pending his release from gaol.

The defendant himself and the defendant’s father also wrote to me. The defendant expressed his remorse and determination to startafresh. The defendant’s father lamented the fact that due to the divorce, he failed to properly supervise the defendant resultingin the defendant being in his present situation.

Mr Egan frankly admitted that there is nothing to make this case depart from the appropriate sentencing guidelines. He asked me toconsider adopting a starting point of 7½ years, to give a one-third discount to 5 years and then some further discount to reflectthe defendant’s remorse and determination to start afresh. I was told the defendant had embarked on a course offered by the ChineseUniversity of Hong Kong.

Sentence

Trafficking in a dangerous drug is a serious offence. On conviction on indictment a person is liable to a fine of $5 million and toimprisonment for life. Though the defendant was convicted of three counts of trafficking in a dangerous drug, on the facts of thiscase it will be proper for me to deal with all the drugs together and pass a concurrent sentence.

The total quantity is 47.85 grammes, which fell into the category of 10 to 50 grammes, with a starting point of 5 to 8 years: Pedro Nel Rojas adopting the guidelines in Lau Tak Ming.

While there was the presence of a mixture of caffeine, lignocaine and phenacetin with traces of cocaine, for the purpose of sentencingI will disregard such substances.

After considering all the circumstances of this case and the defendant’s background, I agree with Mr Egan that a starting pointof 7½ years is appropriate here. The defendant pleaded guilty at the earliest opportunity and is entitled to the full one-thirddiscount. The sentence for all three offences one of 5 years.

While I am pleased to hear the defendant is determined to mend his wayward ways and to pursue a course while in custody, I am afraida one-third discount is the most I can give him upon his plea. The one-third discount is usually to be regarded as the high watermarkof the discount given to a defendant pleading guilty in good time: see HKSAR v Lee Kwok Chuen [2001] HKCU 443.

The defendant’s cooperation with the police is also a factor which I subsume within the one-third discount: see Secretary for Justice v Lee Chun Ho, Jeef [2009] 6 HKC 471.

As the defendant had pleaded guilty to all three counts it is easier for me to sentence the defendant to 5 years’ imprisonment foreach offence and then ordering all sentences to run concurrently, rather than doing some kind of arithmetics to arrive of differentsentences.

For the 1st count the sentence is one of 5 years; 2nd count, 5 years; 3rd count, 5 years. All sentences to run concurrently makinga total of 5 years.