HKSAR v. Chan Siu Hong

HCCC 22/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 22 OF 2015

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

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COURT: Before me, the defendant Chan Siu-hong, a 30-year-old man, has pleaded guilty to possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134. The drugs involved were found in the defendant’s flat at Flat A, 3rd Floor, Yee On Building, 51‑53 Fau Tsoi Street, and they consisted of:

(a) a total of 15.74 grammes of a crystalline solid containing 15.46 grammes of methamphetamine hydrochloride;

(b) a total of 79.08 grammes of cannabis in herbal form; and

(c) a total of 159.21 grammes of a plant seed containing traces of tetrahydrocannabinol.

He has admitted the summary of facts prepared by the prosecution. The summary reads as follows:

“On the 4 June 2014, a team of police officers attached to Yuen Long Special Duties Squad was deployed in an anti‑dangerous drugs operation in the vicinity of Fau Tsoi Street, Yuen Long, New Territories.

At about 1847 hours, police officers arrived outside Flat A, 3rd Floor, Yee On Building, 51-53 Fau Choi Street (“the premises”). PC8256 saw the defendant tidying up the place outside the door of the flat. PC8256 approached the defendant revealing his police identity and explained the purpose of the police being there. The defendant suddenly turned to rush back into the premises. Police officers stopped him from running away.

At 1853 hours, after the defendant was subdued, an officer showed a search warrant obtained from the Tuen Mun Magistracy to the defendant and explained the contents to him. A search was conducted at the premises.

The police found on the table of the bedroom:

(a) a total of 79.08 grammes of cannabis in herbal form, that is Exhibits P1 to P6;

(b) a total of 159.21 grammes of a plant seed containing traces of tetrahydrocannabinol bearing a tetrahydro derivative of cannabinol, Exhibit P7;

(c) a total of 15.74 grammes of a crystalline solid containing 15.46 grammes of methamphetamine hydrochloride, Exhibits P8 and P9.

The police found on the shelf of the bedroom three paraphernalia for inhaling methamphetamine, Exhibits P21 to P23; one PCCW add value application with the defendant’s personal particulars, that is Exhibit P24; one Bank of China account book in the defendant’s name, Exhibit P25; and one birth certificate belonging to the defendant, Exhibit P26.

The defendant was arrested by the police for trafficking in dangerous drugs. Under caution, the defendant said he had nothing to say.

Upon analysis, the Government Chemist found that the dangerous drugs seized by the police in paragraph 4 herein contained the dangerous drugs as set out in the charge against the defendant in this case.

At the time of the offence, the estimated street value of the herbal cannabis found in this case was HK$8,145 and the methamphetamine hydrochloride, that is the ‘Ice’, was HK$8,972 making up a total estimated value of HK$17,117.

The defendant admitted that he was in possession of the dangerous drugs seized in this case for his own consumption.”

At the hearing on 1 December 2015, in accordance with the provisions of section 54A(1) of the Dangerous Drugs Ordinance, I ordered a DATC (“Drug Addiction Treatment Centre”) suitability report on the defendant. The report is now before the court and it states that the defendant is not drug dependent and is considered not suitable for admission to DATC.

According to the well-established authorities, sentencing for possession of dangerous drugs should take a three‑step approach, namely:

(1) To fix a starting point for the offence which mainly depends on the quantity of the drugs involved.

(2) To enhance the sentence by assessing the risk of redistribution of the drugs, sometimes called the latent risk, which should take into account the factors such as the defendant’s personal circumstances and the surrounding circumstances of the offence including the quantity of the drugs.

(3) To consider the mitigating circumstances, if any.

See the cases of HKSAR v Wong Kwan Po [2006] 2 HKLRD 178 and HKSAR v Chan Tai Wah [2012] 4 HKLRD 674. In this case, the more serious drug is the methamphetamine hydrochloride, commonly known as ‘Ice’. The herbal cannabis, despite its larger quantity, is much less serious and can be dealt with more leniently: see HKSAR v Castano Arango Jose Reinel [2014] HKCU 2939 (CACC 174/2014, judgment given on 18 December 2014).

In HKSAR v Mok Cho Tik [2001] 1 HKC 261 where the defendant pleaded guilty to possessing 15.724 grammes of ‘Ice’, the starting point adopted by Court of Appeal was 18 months. The latent risk factor attracted an enhancement of 12 months and the overall sentence was then reduced by one-third for the guilty plea, reaching a sentence of 20 months’ imprisonment.

In the present case, the estimated street value of ‘Ice’ was $8,972 and that of the larger quantity of cannabis was $8,145, making a total of 17,117.

The admitted possession involves 15.74 grammes of ‘Ice’. For this quantity of this dangerous drug alone, the starting point should be 18 months’ imprisonment. The large quantity of cannabis should attract an increased sentence, but I consider it appropriate in all the circumstances of this case to retain this starting point - that means I do not propose to increase the sentence by reason of the herbal cannabis.

Taking into account all the circumstances, I consider that the risk of redistribution is high. It would be fair and proper to enhance the sentence by 12 months’ imprisonment. The overall sentence should therefore be 30 months’ imprisonment.

The defendant is entitled to a full one-third discount for his guilty plea. In the result, I pass a sentence of 20 months’ imprisonment on him.