HKSAR v. Chan Sze Wan

HCCC 36/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 36 OF 2015

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

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COURT: Defendant, you have pleaded guilty to two charges of trafficking in a dangerous drug. Both charges were committed on 3 September 2014. The 1st charge was committed outside Hopewell House in Shui Wo Street where you unlawfully trafficked in 492 grammes of a solid containing 185 grammes of ketamine. The 2nd charge occurred inside your residence on the 1st Floor, Cheung On Mansion, Shui Wo Street, Kwun Tong, where you trafficked in 1.48 kilogrammes of a solid containing 1.26 kilogrammes of ketamine.

On the day in question, you were observed by police officers to have walked hurriedly looking around and pressing on your shoulder bag with your hand outside Hopewell House at 2210 hours. You were intercepted by the officers and a search was conducted of your shoulder bag. The drugs in the 1st charge were found contained in two plastic bags. You were arrested and under caution you admitted that you were taking the drugs for someone to others. You were to be paid $250 per packet and you were in need of money.

Thereafter, you were taken to your flat on the 1st floor of Cheung On Mansion, and inside the flat in a black recycle bag hanging on the wall were found the drugs in Charge 2. The drugs were contained in six plastic bags. Also found in the flat were an electronic scale and a bundle of re-sealable plastic bags.

Under caution, you admitted that those drugs were “K Chai” and you were delivering it for others to earn $250 per packet.

The estimated market retail value of the drugs was $250,444.

Defendant, you are 37 years of age. You were unemployed at the time of arrest and you were, at the time, addicted to drugs.

Mr Laskey, your counsel, in his mitigation informed me that typically for drug dependents like yourself, you were unable to afford to purchase drugs as a result of your addiction and, therefore, you sold drugs to assist in buying or taking drugs for yourself. He submitted that a small portion of the drugs was for your own consumption.

You have eight previous convictions, five of which are related to dangerous drugs. One of those was a similar conviction for trafficking in dangerous drugs and that was in 2007 and you were sentenced to 16 months’ imprisonment. The other remaining convictions related to drugs are for possession and/or possession of equipment fit and intended for smoking or inhaling dangerous drugs.

From those convictions it can be clearly seen that you have been a drug dependent for many years, at least from the record since 2007. In fact, you were last discharge from imprisonment was in December 2013. Nine months after that you committed these two offences.

I accept that you were dependent and that a small portion of these drugs were for your own consumption.

The tariff guidelines have been laid down by Court of Appeal in Hii Siew Cheng for trafficking in the drug of ketamine. However, the maximum laid down in Hii Siew Cheng is that over 1,000 grammes is 14 years’ imprisonment and upwards.

For the purposes of sentencing you in this case, I shall take the total quantity of drugs in both charges and then I shall sentence you individually for each charge.

The total amount of ketamine that you were trafficking in, in Counts 1 and 2 is 1,445 grammes. In the case Sin Chung Kin CACC 458, the Court of Appeal considered the sentencing for large amounts of ketamine, that is amounts of over 1,000 grammes. The Court of Appeal there noted that if it was 2,000 grammes, the sentence would be one of 18 years’ imprisonment.

Therefore, for the amount of drugs you had for trafficking, had you been convicted after trial I would have taken a starting point of 16 years’ imprisonment for the total quantity of drugs.

However, it is noted that you had some of these drugs for your own consumption, and as stipulated in the case of HKSAR v Chow Chun Sang CACC 135/2011, the Court of Appeal there said:

“...when all of part of the drugs are intended for a trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10 per cent and 25 per cent of the basic starting point”.

In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, the proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organised and premediated, and the background in criminal record of the defendant.

In the circumstances of this case, I reduce the starting point, therefore, to 14 years’ imprisonment. Taking that as a starting point and giving you full credit for your plea of guilty, that term shall be reduced to one of 9 years and 4 months’ imprisonment to which you shall so serve.

I will now sentence you individually for each charge.

For Count 1, you were trafficking in 185 grammes of ketamine. Had you been convicted after trial I would have taken a starting point of 7 years and 6 months’ imprisonment, and giving you full credit for your plea of guilty, that sentence will be reduced to one of 5 years’ imprisonment.

For Count 2, you were trafficking in 1,260 grammes of ketamine. Had you been convicted after trial I would have taken a starting point of 14 years’ imprisonment. Giving you full credit for your plea of guilty, that sentence will be reduced to one of 9 years and 4 months’ imprisonment.

Those sentences shall run concurrent to each other to reflect the 9 years and 4 months’ imprisonment.

Although you have one previous similar conviction for trafficking, I have not taken that as an aggravating factor to increase your sentence as that was committed now some 8 years ago.