A A
B B
DCCC 952/2021
C [2022] HKDC 753 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 952 OF 2021
F F
----------------------------
G G
HKSAR
H v H
CHUNG CHEUK HANG
I I
----------------------------
J J
Before: His Honour Judge Tam
K K
Date: 20 July 2022
L Present: Mr K K Chan Danny, Counsel on fiat, for HKSAR L
Ms Yip Shui Hung Liza, instructed by Hui & Lam LLP,
M M
assigned by the Director of Legal Aid, for the defendant
N N
Offence(s): [1] Conspiracy to arrange the passage to Hong Kong of
O
unauthorized entrants（串謀安排未獲授權進境者前來 O
香港的旅程）
P P
[2] Possession of a dangerous drug（管有危險藥物）
Q Q
-----------------------------------------
R R
REASONS FOR SENTENCE
S S
-----------------------------------------
T T
1. Mr Chung pleaded guilty before me to two charges as follows.
U U
V V
-2-
A A
B B
2. Charge 1 is Conspiracy to arrange the passage to Hong Kong
C of unauthorized entrants, contrary to section 37D(1)(a) of the Immigration C
Ordinance, Cap 115, and sections 159A and 159C of the Crimes Ordinance,
D D
Cap 200. Particulars of Offence are that he, between 5 and 8 May 2021,
E both dates inclusive, in Hong Kong, conspired with a person known as “Lo E
Chun” and a person known as “Fook Jai” to arrange the passage to Hong
F F
Kong of unauthorized entrants.
G G
3. Charge 2 is Possession of a dangerous drug, contrary to
H H
section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.
I Particulars are that he, on 9 May 2021, at Room No 607, The Bay Bridge, I
no 123 Castle Peak Road – Ting Kau, Tsuen Wan, New Territories, in
J J
Hong Kong, had in his possession a dangerous drug, namely 2.57 grammes
K of a solid containing 2.29 grammes of cocaine and 0.09 gramme of a K
powder containing cocaine.
L L
M Facts admitted by Mr Chung M
N N
Charge 1
O O
4. On 9 May 2021, at 3:05 am, the police intercepted and
P P
arrested Mr Chung at the lobby of The Bay Bridge (“the Hotel”) in Ting
Q Kau for suspected involvement in a case of “Assisting the Passage to Hong Q
Kong of Unauthorized Entrants”.
R R
S 5. Under caution, Mr Chung admitted the following: S
T T
U U
V V
-3-
A A
B B
(a) He had found “Lo Chun” to liaise with “Fook Jai” to
C arrange 10 females to sneak into Hong Kong from the C
Mainland;
D D
E (b) After everything had been arranged, “Lo Chun” E
suddenly told him that “Fook Jai” changed his mind
F F
because Fook Jai himself had 10-odd females coming
G down; and G
H H
(c) All the females that Mr Chung had wanted to smuggle
I could not come down and they have been scolding him. I
J J
6. Whatsapp messages with a contact saved with the name of
K “Lo Chun” were found on Mr Chung’s mobile phone. Between 5 and K
8 May 2021, Mr Chung had discussions with “Lo Chun” about the
L L
transportation arrangement for some people and the reward to be paid to
M one “Fat Gor”. In particular, “Lo Chun” had mentioned that he would pay M
a bit more to “Fat Gor” as “Fat Gor” would help the girls onto the boats
N N
and vehicles. Mr Chung had also mentioned that he had around 12 people
O who had been waiting for over a week, to which “Lo Chun” replied that he O
would force “Fat Gor” to drive four more people over.
P P
Q Q
R R
S S
T T
U U
V V
-4-
A A
B B
Charge 2
C C
7. The key to Room 607 of the Hotel was found on Mr Chung.
D D
Hotel records show he had booked into Room 607 since 7 May 2021.
E E
8. On 3:51 am of the same day, Room 607 was searched with the
F F
following discovery. On a coffee table beside the bed were found:
G G
(a) 13 red sealed plastic packets containing a total of 2.48
H H
grammes of a solid containing 2.29 grammes of cocaine;
I and I
J J
(b) A cigarette box containing a cigarette containing 0.09
K gramme of a powder containing cocaine and another K
cigarette containing 0.09 gramme of a solid containing
L L
cocaine.
M M
9. Mr Chung was arrested for “Possession of Dangerous Drugs”
N N
and he admitted all the cocaine seized was for his self-consumption. He
O admitted the same in a subsequent VRI. O
P P
Criminal record
Q Q
10. Mr Chung has one previous but dissimilar conviction in 2016.
R R
S S
T T
U U
V V
-5-
A A
B B
Antecedents
C C
11. Mr Chung is aged 29 (28 at the time of the offences), educated
D D
to F5, was truck driver since 2009. Mr Chung is single. Before being
E placed into custody, he was living in public housing in Tin Shui Wai. His E
family members include his parents, a younger sister and a daughter
F F
(aged 6).
G G
Mitigation
H H
I 12. Ms Liza Yip of counsel assigned by the Director of Legal Aid I
mitigated on behalf of Mr Chung. The following is a summary of the
J J
mitigation submissions.
K K
13. Mr Chung’s parents separated when he was very young. He
L L
had no contact with his father. Nonetheless, both parents are in court to
M give their support. Mr Chung’s younger sister has left Hong Kong and M
rarely kept contact.
N N
O 14. Mr Chung is single but has a daughter by his ex-girlfriend who O
left them when the child was 2 years old. The girl is being taken care of
P P
Mr Chung’s mother (54).
Q Q
15. Prior to his arrest, Mr Chung was living with his mother and
R R
daughter. In order to take care of the young child, the mother had to quit
S her part-time cleaner job. Mr Chung became the sole bread winner. S
T T
U U
V V
-6-
A A
B B
16. Mr Chung started running a small business renting out a
C fishing boat to others to go fishing, earning about $20,000 a month. He C
made regular contribution to his mother of about $10,000 each month.
D D
E 17. Because of Covid in 2020, his business went down. His E
income was reduced. He became an addict to cocaine about that time. He
F F
was only able to work as a part-time truck driver delivering fishes and
G seafood. His monthly contribution to mother was cut by 60%. G
H H
18. After his arrest, his ex-girlfriend started contributing a few
I thousand dollars per month to support the living expenses of their daughter I
and Mr Chung’s mother.
J J
K 19. Mr Chung committed the offence subject of Charge 1 because K
he needed money for family expenses. He was manipulated by dubious
L L
peers.
M M
20. On 5 May 2021, an old rental customer “Ah On” suddenly
N N
suggested to Mr Chung that he transport some unauthorized entrants
O (females) to Hong Kong. Mr Chung refused to do the transportation O
himself, but agreed to contact “Lo Chun” and “Fook Jai” and make the
P P
arrangements for the females to sneak into Hong Kong. Ah On gave him
Q the details of the females; Lo Chun and Fook Jai were to arrange the Q
transportation for the females to come to Hong Kong. The females were
R R
willing participants.
S S
T T
U U
V V
-7-
A A
B B
21. Mr Chung’s role was only to act as a go-between for Ah On,
C the females, Lo Chun and Fook Jai. Mr Chung would receive a few C
hundred dollars per person/female when they arrive in Hong Kong.
D D
E 22. On 8 May 2021, Lo Chun suddenly informed Mr Chung that E
the price of transportation for each female would be increased and there
F F
would only be 4 vacant seats available. As this was not the arrangement
G reached with Ah On, no one was brought into Hong Kong in the end. G
H H
23. All the cocaine found was for Mr Chung’s own consumption.
I He rented the hotel room for the purpose of consuming the cocaine. I
Mr Chung had no intention to share the drug with anyone.
J J
K 24. Mr Chung was cooperative with the police and made frank K
admissions. He however dared not reveal the existence and contact details
L L
of Ah On at the time of arrest for safety concerns of his family. Mr Chung
M pleaded guilty showing remorse. The criminal plan had not been carried M
out and his role was minor. Because of the small amount of cocaine, there
N N
was little “latent risk”.
O O
25. Mr Chung has expressed his remorse to the court and his
P P
family.
Q Q
26. There is no sentencing tariff for the offence subject of Charge
R R
1. The cases of R v Ho Siu Lun & Ors, CACC 257/1986, and HKSAR v
S Tse Chi Hei, CACC 393/2009, were submitted to assist the court. Ms Yip S
reminded the court that in the absence of aggravating factors, a starting
T T
point of 4 years appears to be the norm for a person who is not the coxswain.
U U
V V
-8-
A A
B B
C 27. The sentencing guidelines for simple possession of a C
dangerous drug cases can be seen in HKSAR v Mok Cho Tik, CACC
D D
165/2000. Ms Yip urged the court to adopt the lower end of the range of
E starting points. E
F F
28. The court is invited to give Mr Chung the full one-third
G discount. The court is also urged to consider his minor role and he was G
doing what he was told and instructed by Ah On.
H H
I 29. Ms Yip submitted on behalf of Mr Chung three mitigation I
letters written in Chinese (with English translation) by respectively
J J
Mr Chung himself, his mother and a pastor. The contents are generally
K that Mr Chung was the family pillar; that he felt regretful; that he promised K
he would become a responsible father and distance himself from drug and
L L
bad peers; that he would return to hard work and become a new self; that
M his family wish him an early return and play the role of a good citizen and M
father.
N N
O 30. Ms Yip also submitted on behalf of Mr Chung a certificate of O
completion of a bible correspondence course entitled “Light of Life”.
P P
Q Sentence Q
R R
31. For Charge 1, the conspiracy offence attracts a maximum
S penalty identical to the substantive offence ie a fine of $5M and S
imprisonment for 14 years.
T T
U U
V V
-9-
A A
B B
32. I accept from mitigation that Mr Chung did not take part in
C organizing or planning the journey1 and that he was merely a go-between. C
However, although this was a conspiracy that was not fully executed, the
D D
fact that this was a conspiracy at all will call for a higher starting point
E because it necessarily involved more than one offender. In line with Ho E
Siu Lun & Ors, supra, and bearing in mind the fact of conspiracy, albeit
F F
one that was not fully executed, I shall adopt a starting point of 4 years 3
G months’ imprisonment. G
H H
33. For Charge 2, in line with Mok Cho Tik, supra, and in light of
I the quantity involved, I shall adopt a starting point of 12 months’ I
imprisonment. I then consider the latent risk factor with the following
J J
elements in mind: Mr Chung not having a stable income; the use of a hotel
K room to consume drug; 13 separate plastic bags but of small total quantity; K
and absence of a previous trafficking record. I conclude that the latent risk
L L
is not high, so I will not enhance the starting point.
M M
34. Mr Chung pleaded guilty in good time. I shall grant him the
N N
usual 1/3 discount. There are no other mitigating factors of weight to
O warrant any further discounts. O
P P
35. The two offences are completely separate in nature and one is
Q not the concomitant of the other. They ought to attract consecutive Q
sentences, subject only to the principle of totality.
R R
S (Mr Chung, please stand) S
T T
1
See Tse Chi Hei, supra, at para 13, which suggested a higher starting point if he did.
U U
V V
- 10 -
A A
B B
36. For Charge 1, Mr Chung shall go to prison for 34 months.
C C
37. For Charge 2, Mr Chung shall go to prison for 8 months.
D D
E 38. On an application of the totality principle, I order that 4 E
months of the sentence on Charge 2 is to run consecutively to the sentence
F F
on Charge 1, making an aggregate sentence of 38 months’ imprisonment.
G G
H H
I I
J J
K ( Isaac Tam ) K
District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 952/2021
C [2022] HKDC 753 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 952 OF 2021
F F
----------------------------
G G
HKSAR
H v H
CHUNG CHEUK HANG
I I
----------------------------
J J
Before: His Honour Judge Tam
K K
Date: 20 July 2022
L Present: Mr K K Chan Danny, Counsel on fiat, for HKSAR L
Ms Yip Shui Hung Liza, instructed by Hui & Lam LLP,
M M
assigned by the Director of Legal Aid, for the defendant
N N
Offence(s): [1] Conspiracy to arrange the passage to Hong Kong of
O
unauthorized entrants（串謀安排未獲授權進境者前來 O
香港的旅程）
P P
[2] Possession of a dangerous drug（管有危險藥物）
Q Q
-----------------------------------------
R R
REASONS FOR SENTENCE
S S
-----------------------------------------
T T
1. Mr Chung pleaded guilty before me to two charges as follows.
U U
V V
-2-
A A
B B
2. Charge 1 is Conspiracy to arrange the passage to Hong Kong
C of unauthorized entrants, contrary to section 37D(1)(a) of the Immigration C
Ordinance, Cap 115, and sections 159A and 159C of the Crimes Ordinance,
D D
Cap 200. Particulars of Offence are that he, between 5 and 8 May 2021,
E both dates inclusive, in Hong Kong, conspired with a person known as “Lo E
Chun” and a person known as “Fook Jai” to arrange the passage to Hong
F F
Kong of unauthorized entrants.
G G
3. Charge 2 is Possession of a dangerous drug, contrary to
H H
section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.
I Particulars are that he, on 9 May 2021, at Room No 607, The Bay Bridge, I
no 123 Castle Peak Road – Ting Kau, Tsuen Wan, New Territories, in
J J
Hong Kong, had in his possession a dangerous drug, namely 2.57 grammes
K of a solid containing 2.29 grammes of cocaine and 0.09 gramme of a K
powder containing cocaine.
L L
M Facts admitted by Mr Chung M
N N
Charge 1
O O
4. On 9 May 2021, at 3:05 am, the police intercepted and
P P
arrested Mr Chung at the lobby of The Bay Bridge (“the Hotel”) in Ting
Q Kau for suspected involvement in a case of “Assisting the Passage to Hong Q
Kong of Unauthorized Entrants”.
R R
S 5. Under caution, Mr Chung admitted the following: S
T T
U U
V V
-3-
A A
B B
(a) He had found “Lo Chun” to liaise with “Fook Jai” to
C arrange 10 females to sneak into Hong Kong from the C
Mainland;
D D
E (b) After everything had been arranged, “Lo Chun” E
suddenly told him that “Fook Jai” changed his mind
F F
because Fook Jai himself had 10-odd females coming
G down; and G
H H
(c) All the females that Mr Chung had wanted to smuggle
I could not come down and they have been scolding him. I
J J
6. Whatsapp messages with a contact saved with the name of
K “Lo Chun” were found on Mr Chung’s mobile phone. Between 5 and K
8 May 2021, Mr Chung had discussions with “Lo Chun” about the
L L
transportation arrangement for some people and the reward to be paid to
M one “Fat Gor”. In particular, “Lo Chun” had mentioned that he would pay M
a bit more to “Fat Gor” as “Fat Gor” would help the girls onto the boats
N N
and vehicles. Mr Chung had also mentioned that he had around 12 people
O who had been waiting for over a week, to which “Lo Chun” replied that he O
would force “Fat Gor” to drive four more people over.
P P
Q Q
R R
S S
T T
U U
V V
-4-
A A
B B
Charge 2
C C
7. The key to Room 607 of the Hotel was found on Mr Chung.
D D
Hotel records show he had booked into Room 607 since 7 May 2021.
E E
8. On 3:51 am of the same day, Room 607 was searched with the
F F
following discovery. On a coffee table beside the bed were found:
G G
(a) 13 red sealed plastic packets containing a total of 2.48
H H
grammes of a solid containing 2.29 grammes of cocaine;
I and I
J J
(b) A cigarette box containing a cigarette containing 0.09
K gramme of a powder containing cocaine and another K
cigarette containing 0.09 gramme of a solid containing
L L
cocaine.
M M
9. Mr Chung was arrested for “Possession of Dangerous Drugs”
N N
and he admitted all the cocaine seized was for his self-consumption. He
O admitted the same in a subsequent VRI. O
P P
Criminal record
Q Q
10. Mr Chung has one previous but dissimilar conviction in 2016.
R R
S S
T T
U U
V V
-5-
A A
B B
Antecedents
C C
11. Mr Chung is aged 29 (28 at the time of the offences), educated
D D
to F5, was truck driver since 2009. Mr Chung is single. Before being
E placed into custody, he was living in public housing in Tin Shui Wai. His E
family members include his parents, a younger sister and a daughter
F F
(aged 6).
G G
Mitigation
H H
I 12. Ms Liza Yip of counsel assigned by the Director of Legal Aid I
mitigated on behalf of Mr Chung. The following is a summary of the
J J
mitigation submissions.
K K
13. Mr Chung’s parents separated when he was very young. He
L L
had no contact with his father. Nonetheless, both parents are in court to
M give their support. Mr Chung’s younger sister has left Hong Kong and M
rarely kept contact.
N N
O 14. Mr Chung is single but has a daughter by his ex-girlfriend who O
left them when the child was 2 years old. The girl is being taken care of
P P
Mr Chung’s mother (54).
Q Q
15. Prior to his arrest, Mr Chung was living with his mother and
R R
daughter. In order to take care of the young child, the mother had to quit
S her part-time cleaner job. Mr Chung became the sole bread winner. S
T T
U U
V V
-6-
A A
B B
16. Mr Chung started running a small business renting out a
C fishing boat to others to go fishing, earning about $20,000 a month. He C
made regular contribution to his mother of about $10,000 each month.
D D
E 17. Because of Covid in 2020, his business went down. His E
income was reduced. He became an addict to cocaine about that time. He
F F
was only able to work as a part-time truck driver delivering fishes and
G seafood. His monthly contribution to mother was cut by 60%. G
H H
18. After his arrest, his ex-girlfriend started contributing a few
I thousand dollars per month to support the living expenses of their daughter I
and Mr Chung’s mother.
J J
K 19. Mr Chung committed the offence subject of Charge 1 because K
he needed money for family expenses. He was manipulated by dubious
L L
peers.
M M
20. On 5 May 2021, an old rental customer “Ah On” suddenly
N N
suggested to Mr Chung that he transport some unauthorized entrants
O (females) to Hong Kong. Mr Chung refused to do the transportation O
himself, but agreed to contact “Lo Chun” and “Fook Jai” and make the
P P
arrangements for the females to sneak into Hong Kong. Ah On gave him
Q the details of the females; Lo Chun and Fook Jai were to arrange the Q
transportation for the females to come to Hong Kong. The females were
R R
willing participants.
S S
T T
U U
V V
-7-
A A
B B
21. Mr Chung’s role was only to act as a go-between for Ah On,
C the females, Lo Chun and Fook Jai. Mr Chung would receive a few C
hundred dollars per person/female when they arrive in Hong Kong.
D D
E 22. On 8 May 2021, Lo Chun suddenly informed Mr Chung that E
the price of transportation for each female would be increased and there
F F
would only be 4 vacant seats available. As this was not the arrangement
G reached with Ah On, no one was brought into Hong Kong in the end. G
H H
23. All the cocaine found was for Mr Chung’s own consumption.
I He rented the hotel room for the purpose of consuming the cocaine. I
Mr Chung had no intention to share the drug with anyone.
J J
K 24. Mr Chung was cooperative with the police and made frank K
admissions. He however dared not reveal the existence and contact details
L L
of Ah On at the time of arrest for safety concerns of his family. Mr Chung
M pleaded guilty showing remorse. The criminal plan had not been carried M
out and his role was minor. Because of the small amount of cocaine, there
N N
was little “latent risk”.
O O
25. Mr Chung has expressed his remorse to the court and his
P P
family.
Q Q
26. There is no sentencing tariff for the offence subject of Charge
R R
1. The cases of R v Ho Siu Lun & Ors, CACC 257/1986, and HKSAR v
S Tse Chi Hei, CACC 393/2009, were submitted to assist the court. Ms Yip S
reminded the court that in the absence of aggravating factors, a starting
T T
point of 4 years appears to be the norm for a person who is not the coxswain.
U U
V V
-8-
A A
B B
C 27. The sentencing guidelines for simple possession of a C
dangerous drug cases can be seen in HKSAR v Mok Cho Tik, CACC
D D
165/2000. Ms Yip urged the court to adopt the lower end of the range of
E starting points. E
F F
28. The court is invited to give Mr Chung the full one-third
G discount. The court is also urged to consider his minor role and he was G
doing what he was told and instructed by Ah On.
H H
I 29. Ms Yip submitted on behalf of Mr Chung three mitigation I
letters written in Chinese (with English translation) by respectively
J J
Mr Chung himself, his mother and a pastor. The contents are generally
K that Mr Chung was the family pillar; that he felt regretful; that he promised K
he would become a responsible father and distance himself from drug and
L L
bad peers; that he would return to hard work and become a new self; that
M his family wish him an early return and play the role of a good citizen and M
father.
N N
O 30. Ms Yip also submitted on behalf of Mr Chung a certificate of O
completion of a bible correspondence course entitled “Light of Life”.
P P
Q Sentence Q
R R
31. For Charge 1, the conspiracy offence attracts a maximum
S penalty identical to the substantive offence ie a fine of $5M and S
imprisonment for 14 years.
T T
U U
V V
-9-
A A
B B
32. I accept from mitigation that Mr Chung did not take part in
C organizing or planning the journey1 and that he was merely a go-between. C
However, although this was a conspiracy that was not fully executed, the
D D
fact that this was a conspiracy at all will call for a higher starting point
E because it necessarily involved more than one offender. In line with Ho E
Siu Lun & Ors, supra, and bearing in mind the fact of conspiracy, albeit
F F
one that was not fully executed, I shall adopt a starting point of 4 years 3
G months’ imprisonment. G
H H
33. For Charge 2, in line with Mok Cho Tik, supra, and in light of
I the quantity involved, I shall adopt a starting point of 12 months’ I
imprisonment. I then consider the latent risk factor with the following
J J
elements in mind: Mr Chung not having a stable income; the use of a hotel
K room to consume drug; 13 separate plastic bags but of small total quantity; K
and absence of a previous trafficking record. I conclude that the latent risk
L L
is not high, so I will not enhance the starting point.
M M
34. Mr Chung pleaded guilty in good time. I shall grant him the
N N
usual 1/3 discount. There are no other mitigating factors of weight to
O warrant any further discounts. O
P P
35. The two offences are completely separate in nature and one is
Q not the concomitant of the other. They ought to attract consecutive Q
sentences, subject only to the principle of totality.
R R
S (Mr Chung, please stand) S
T T
1
See Tse Chi Hei, supra, at para 13, which suggested a higher starting point if he did.
U U
V V
- 10 -
A A
B B
36. For Charge 1, Mr Chung shall go to prison for 34 months.
C C
37. For Charge 2, Mr Chung shall go to prison for 8 months.
D D
E 38. On an application of the totality principle, I order that 4 E
months of the sentence on Charge 2 is to run consecutively to the sentence
F F
on Charge 1, making an aggregate sentence of 38 months’ imprisonment.
G G
H H
I I
J J
K ( Isaac Tam ) K
District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V