HKSAR v. Chan Yun Kam

HCCC 406/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 406 OF 2015

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

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COURT: The defendant has been convicted on his own plea of one charge of trafficking in a dangerous drug. The guilty plea was entered at the Eastern Magistrates’ Court on 16 October 2015.

The Particulars of Offence provide that on 12 February 2015 at Yau Ma Tei, Kowloon in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 16.32 grammes of a crystalline solid containing 15.49 grammes of methamphetamine hydrochloride, commonly known as the ‘Ice’ drug.

The Summary of Facts admitted by the defendant provides, inter alia, that at around 5.40 am on 12 February 2015, police on information intercepted the defendant under the flyover in Ferry Street, Yau Ma Tei, Kowloon in Hong Kong. Upon search, the police found from the defendant’s jacket pocket a blue and black bag containing:

(1) 23 plastic bags containing a total of 16.32 grammes of a crystalline solid containing 15.49 grammes of methamphetamine hydrochloride; and

(2) 39 empty resealable plastic bags.

Arrested and cautioned, the defendant admitted that he intended to sell the dangerous drug to earn some money for living. The defendant claimed to police that he had no fixed abode and he slept under the flyover. He later brought police to a corner near the arrest location for a search and nothing suspicious was found.

At a video-recorded interview, the defendant said, inter alia, that he picked up all the ‘Ice’ a week earlier and he intended to sell them at HK$400 per bag to earn some money for his living.

The dangerous drug had an estimated retail value at the time of the seizure of HK$7,050.

By way of personal background, the defendant is 64 years of age. He was born in China in December 1951. He came to Hong Kong when he was 19. The defendant has received education up to primary level. He had worked as a dim sum worker and a transportation worker. At the time of his arrest, the defendant was unemployed, receiving about HK$3,500 per month by way of comprehensive social security assistance. He was homeless and he lived alone.

The defendant has a total of 17 previous convictions, 13 of which are drug-related, with 6 of them for either trafficking in dangerous drugs or possession of dangerous drugs for the purpose of unlawful trafficking.

By way of mitigation, Mr Francis Cheng submitted on behalf of the defendant that the only real mitigation in the present case is the defendant’s guilty plea. Mr Francis Cheng further urged upon this court not to treat the defendant as a repeated offender, as the defendant has been able to remain drug-free since his discharge from prison in 2008. As mentioned in the Summary of Facts, the defendant claims that the drug, the subject matter of this case, was picked up by the defendant on the street. Albeit he knew that it was a dangerous drug and had intended to sell it for a profit.

In the present case, the narcotic involved is 15.49 grammes of methamphetamine hydrochloride. The offence was committed on 12 February 2015, ie, after the Court of Appeal had handed down its Judgment in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 on 9 June 2014, which sets out the revised tariffs for trafficking in the ‘Ice’ drug.

In the Tam Yi Chun case, the Court of Appeal held that for trafficking in between 10 and 70 grammes of the ‘Ice’ drug, the guideline starting point after trial should be 7 to 11 years’ imprisonment.

In my view, following the guidelines in the Tam Yi Chun case and based on the quantity of narcotic involved, the proper starting point for sentence in the present case should be 7 years and 4 months’ imprisonment.

I shall give the defendant the full one-third discount from the starting point for his guilty plea.

Defendant, can you stand up, please.

The defendant is accordingly sentenced to 4 years and 10 months’ imprisonment.