HKSAR v. Pang Wing Chuen

HCCC 162/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 162 OF 2016

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

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COURT: The defendant pleaded guilty before a magistrate to two charges on the indictment; in fact, they are the amended charges.

The first charge is possession of a dangerous drug, contrary to section (8)(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134. The particulars of offence were that on the 31st day of July 2015, at 1st Floor, 107 Tai Nan Street, Mong Kok, Kowloon in Hong Kong, the defendant had in his possession a dangerous drug, namely 0.88 gramme of crystalline solid containing 0.87 gramme methamphetamine hydrochloride.

The 2nd charge is trafficking in dangerous drugs, contrary to section (4)(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The particulars of offence were that on the 31st day of July 2015, at Room 1, 1st Floor, 107 Tai Nan Street, Mong Kok, Kowloon, in Hong Kong, the defendant unlawfully trafficked in dangerous drugs, namely 90.04 grammes of crystalline solid containing 87.65 grammes of methamphetamine hydrochloride, 3.79 grammes of a crystalline solid containing 2.92 grammes of ketamine and 38 tablets containing 0.06 gramme of methamphetamine.

He also admitted the summary of facts prepared by the prosecution. Thereafter, he was committed to this court for sentence.

The summary of facts reads as follows:

“1. In the evening of 31 July 2015, police officers conducted an anti-narcotic operation inside the building at 107 Tai Nan Street, Mong Kok. At 9.43 pm on the same day, the officers intercepted the target person, namely the accused, after he entered the building. The accused told the officers that he was on his way to his home at Room 1 on the 1st floor (“the room”).

2. Upon a search of a pocket of the accused’s trouser, the officers found a transparent resealable bag containing suspected dangerous drug, later found to be 0.88 gramme of a crystalline solid containing 0.87 gramme of methamphetamine hydrochloride.  Cautioned, the accused said the bag of ‘Ice’ was for his consumption.

3. With the keys found on him, the officers gained access to the room and conducted a search therein.

4. The officers found the following in a drawer of television cabinet:

(i) eight transparent resealable bag containing suspected ‘Ice’, later found to be a total 90.04 grammes of a crystalline solid containing 87.65 grammes of methamphetamine hydrochloride;

(ii) one transparent resealable bag containing suspected ketamine, later found to be 3.79 grammes of a crystalline solid containing 2.92 grammes of ketamine; and

(iii) four transparent resealable bags containing a total of 38 tablets containing suspected dangerous drug, later found to be 0.06 gramme of methamphetamine.

5. Further, the officers found, inter alia, the following on top of the television cabinet: two packs of transparent plastic bags containing a total of 97 transparent resealable plastic bags; two tape dispensers; an electronic scale.

6. Two mobile phones and cash HK$5768.8 were seized from the accused.

7. A copy tenancy agreement bearing the accused’s name as the tenant was found in the house. According to the agreement, the tenancy was from 1 November 2014 to 30 October 2015.  The monthly rental was $4,300.

8. Under further caution, the accused claimed that all the ‘Ice’ found in the house was for his consumption.

9. He claimed, inter alia, the following during the subsequent video-recorded interview: the ‘Ice’ found on his person was for his own consumption; all the ‘Ice’ found in the house belonged to him and for his own consumption; one of the bags found contained ketamine; the 38 tablets were for mixing with the ‘Ice’ for consumption; he was the tenant and sole occupant of the house since 1 November 2014; all the ‘Ice’ found in this case were bought for $9,000 on 30 July 2015; he bought more drugs on that day due to the imminent typhoon; he obtained the ketamine and the 38 tablets free of charge; he was unemployed for five months; he had casual jobs at the airport previously; he consumed three times of ‘Ice’ a day, each time he would consume half-gramme to one-gramme; the empty resealable plastic bags and the electronic scale were for the verifying the quantity of the drugs he bought to see if he had been cheated; after consuming the drug, he would seal the plastic bag with adhesive tapes.

10. At time of the seizure, the crystalline solid of methamphetamine hydrochloride and ketamine had estimated retail values of $27,276 and $553 respectively.

11. The accused now admits and accepts that he was trafficking in all the dangerous drugs found in the house.”

For simple possession of a dangerous drug, I have consulted Cross and Cheung, Sentencing in Hong Kong, 7th Edition, pages 625 to 626. For the small quantity of less than 1 gramme of ‘Ice’ in the 1st charge, I consider that the appropriate starting point is 6 months’ imprisonment.

For the 2nd charge, trafficking in three quantities of drugs, due to the relative less serious nature and small quantity of ketamine, I shall focus on the proper sentence for the much larger quantity of methamphetamine hydrochloride, ‘Ice’. The tablets of methamphetamine, which I consider to be the same sort of drug as methamphetamine hydrochloride, the total quantity came to 87.71 grammes of ‘Ice’ in pure form.

According to the Attorney General v Ching Kwok Hung [1991] 2 HKLR 125 which set down the sentencing guidelines for trafficking in ‘Ice’, as revised by the Court of Appeal in HKSAR v Tam Yi Chun [2014] 2 HKLRD 691 at 702, for trafficking in a quantity of 70 to 300 grammes of ‘Ice’, the appropriate sentence should be 11 to 15 years’ imprisonment.

The total quantity of 87.71 grammes of ‘Ice’ in the present case, attracts a sentence of imprisonment for about 11 years and 3 months. I am prepared to disregard the relative small quantity of ketamine in aggravating the sentence. I adopt 11 years and 3 months as the starting point for the 2nd charge.

The defendant has presented a letter for the court’s consideration. As his counsel has summarised, the letter had four points.

1. He regards for what he has done.

2. He wishes to turn a new leaf.

3. He realises that he cannot spend more of his life to be associated with drugs.

4. He knows what he had done was wrong and he hopes for a lenient sentence.

For a grave offence such as trafficking in dangerous drugs, personal and family circumstances rarely provide any basis for mitigation of sentence. The only substantial mitigation is the plea of guilty made by the defendant himself for which he is entitled to a full one-third discount from the starting point.

Therefore, for the 1st charge, the starting point of 6 months is reduced by the plea to 4 months’ imprisonment, and for the 2nd charge, the starting point of 11 years and 3 months is reduced to 7 years and 6 months.

Those are the sentences I pass on the defendant, that is, on the 1st charge, the 4 months; and on the 2nd charge, 7 years and 6 months’ imprisonment. I order the sentences to run concurrently, making the total sentence that the defendant has to serve, imprisonment for 7 years and 6 months.