HKSAR v. Chu Chun Wing

DCCC 585/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 585 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to four charges. They are, firstly, trafficking in a dangerous drug - that is, 64.80 grammes of ketamine; secondly, possession of 0.19 grammes of heroin; thirdly, possession of a poison, which is a fragment of tablet of sildenafil; and finally, possession of arms without a licence, which is an air gun with a muzzle energy greater than 2 joules.

2.The defendant has accepted the Summary of Facts.  These show that on 20 April 2015, police conducted a house search at a place where the defendant lived with his uncle in Sheung Shui.

3.In the defendant’s room, under a computer table, the drugs particularised in Charges 1 and 2 were found, together with the fragment of the tablet sildenafil and the air rifle.

4.Together with the drugs was found paraphernalia for the trafficking of the drug, including such things as electric scales and resealable plastic bags.

5.The defendant’s antecedents show that he is now aged 28 years old.  He has four previous convictions relating to possession of drugs.  In February 2014 he was sentenced to detention in a drug addiction treatment centre for possession of a dangerous drug.

6.On his arrest and detention for this offence, he was subject to a recall order for these offences.

7.The defendant was unemployed before his arrest and lived with his uncle.  He is a drug addict.

8.I turn to the sentences on each offence, starting with Charge 1, trafficking in a dangerous drug.  We are concerned here with the drug ketamine in a quantity of 64.80 grammes.  According to the guideline case of Secretary for Justice v Hii Siew Cheng, this places the sentence in the range of 50 to 300 grammes, for which the starting point for sentence should range between 6 to 9 years’ imprisonment. The quantity of the drug is towards the lower end of that tariff, and I will adopt a starting point of 6 years 3 months, or 75 months’ imprisonment for that offence.

9.The defendant has indicated that part of the drugs were for his own consumption.  He asks for a deduction from the starting point to reflect this factor.  According to the case of HKSAR v Wong Suet Hau, [2002] HKLRD 69, that is a factor that can lead to reduction in starting point of sentence.

10.The defendant is a drug addict; he is a consumer of drugs.  His remands to DATC are his defence for this offence, and the presence of drugs in his urine sample on arrest support this.  In the case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 it was said that:

“When part of the drugs are intended for the trafficker’s own consumption, the ensuing discount in sentence should, depending on the circumstances, fall somewhere between 10 to 25 per cent of the basic starting point. It is not necessary for the court to specify the relative amounts or proportions except in the broadest terms.”

11.I find that the evidence supports the fact that the defendant would have consumed part of the drug found in Charge 1.  I would quantify this in the region of 20 per cent, which gives a deduction of 15 months from the original 75 months’ imprisonment to a starting point of 60 months’ imprisonment.  From this figure the defendant is entitled by his plea to a one-third discount.  This gives a final figure on Charge 1 of a sentence of 40 months’ imprisonment.

12.On Charge 2, the defendant has pleaded guilty to possession of dangerous drugs, which is a quantity of 0.19 grammes of heroin hydrochloride.  In the case of Mok Cho Tik [2001] HKCA 61 AC, it was said that the starting point for simple possession of a dangerous drug, in those cases, sentences should range between 12 to 18 months’ imprisonment.

13.Here, the quantity is small.  I will adopt a starting point of 12 months’ imprisonment.  After a one-third discount, this leads to a sentence on Charge 2 of 8 months’ imprisonment.

14.Charge 3 relates to the possession of a fragment of a Part I poison.  A fine would normally be imposed or appropriate for this sort of offence.  I will simply impose a sentence of 1 day’s imprisonment.

15.Charge 4 relates to the possession of arms without a licence.  In this case I am dealing with an air gun, or air rifle, with a muzzle velocity of around 9.13 joules.  A licence is required for a weapon with a muzzle velocity greater than 2 joules.

16.In the case of R v Leung Shu Lun(?) [1997] HKCA 644, a case involving the possession of a number of air rifles with muzzle velocities up to 12.84 joules, it was noted that there was no guideline for this type of weapon.  In that case, the Court of Appeal adopted a starting point of 18 months’ imprisonment, illustrating that a sentence of imprisonment is appropriate for possession without a licence of this category of weapon.

17.The defendant said the purpose of the weapon was for shooting at cans, but of course they do have the potential to cause harm, and it was found in an unloaded state behind the bedroom door, which is where the drugs were also found.

18.I nevertheless consider that a sentence of imprisonment is appropriate on that charge.  Here, there is one weapon with a slightly lower muzzle velocity than the weapons in Leung Shu Lun’s case.  I will take a lower starting point of 15 months’ imprisonment for this offence, and reduce this to 10 months’ imprisonment to reflect the defendant’s plea of guilty.

19.Thus the sentences are as follows, at this stage:  on Charge 1, 40 months’ imprisonment; Charge 2, 8 months’ imprisonment; Charge 3, 1 day’s imprisonment; Charge 4, 10 months’ imprisonment.

20.The first three offences are certainly alike offences and involve drugs and Part I poison.  I consider that the sentences on these offences should be served concurrently with each other.

21.Thus, the sentences on Charges 1 to 3 will be served concurrently to each other.

22.The sentence on Charge 4 is of a different nature.  I consider that at least part of this sentence should be served consecutively.

23.Thus, I will order that 5 months of the sentence on Charge 4 is to be served consecutively to the other three charges, the balance concurrently.

24.This gives an overall sentence on all four charges of 45 months’ imprisonment.