HKSAR v. Chung Chu Kan

DCCC 427/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 427 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty before me to one count of trafficking in dangerous drugs. The drugs involved are 7.68 grammes of a crystalline solid containing 7.64 grammes of methamphetamine hydrochloride, 1.79 grammes of a mixture containing 1.39 grammes of heroin hydrochloride, 0.08 gramme of a mixture containing heroin and methamphetamine, and 2.62 grammes of cannabis in herbal form.

2.The prosecution case is simple and straightforward.  At around 8.30 in the evening of 23 March 2016, police stopped the defendant outside his home, which is a public housing unit in Sau Mau Ping Estate, when he came out.  The police found on him the drugs as particularised in the charge.  They were kept in four separate resealable plastic bags: two bags of “Ice”, one bag of a mixture of heroin and “Ice”, and one bag of cannabis.  Brought back into his home, the police further found, among other things, a box containing 20,000 cash, an electronic scale, a box containing 67 transparent resealable plastic bags, and one roll of tin foil. 

3.In a subsequent interview with the police, the defendant told the police that he was taking the drugs to a shop in Sham Shui Po for consumption.  The shop was operated by a person called Fay Lung for mahjong playing, but he saw people inhaling white powder in the shop occasionally.

4.He went on to say that a drug trafficker called So Wai used to stay at his home about a year ago, the drug-packaging tools found at his home belonged to So Wai who had not come to collect them for over a year.  Defendant sometimes used the electronic scale to weigh the drugs for his own consumption elsewhere.

5.The defendant, aged 60, still single, has amassed 37 previous convictions.  16 of them are drug-related and 6 trafficking. 

6.In mitigation, the defence lawyer emphasised that defendant fully co-operated with the police by admitting possession of the drugs in question, and his guilty plea was indicative of the defendant’s remorse which has saved the valuable time of the court.  In his letter to the court, the defendant said that he would stay away from drugs after his release from prison this time and would take part in volunteer work.

7.In his written mitigation, the defence lawyer mentioned that “the defendant informed the police information of the drug dealer (Sic).”  After clarification, the court came to know that all that the defendant had given was the name and telephone number of the so-called drug dealers to the police, but the police were not getting anywhere with this information.  From what was told by the prosecutor, the police were basically unable to locate the person who the defendant said was the drug dealer.  Given the situation as it is, I do not think that this amounts to sufficient assistance to the police which would warrant a further deduction of sentence.

8.In Wong Kin Kau’s case, CACC 269 of 2009, the appellate court talked about two main points: first, the conversion test and, second, the potential for the mixing of the drugs to enhance their potency which would be regarded as an aggravating factor.

9.We need not concern ourselves with the conversion in the instant case because insofar as the cannabis is concerned, its amount is so insignificant that it could be ignored for the purpose of sentencing.  As for the heroin, it would also be ignored because the amount of “Ice” which could be converted from 1.39 grammes of heroin is only of minute quantity.  It would not make any difference to the overall weight of “Ice” in the instant case.  1.39 grammes of heroin hydrochloride would have attracted a sentence of 2 years according to Lau Tak Ming’s guidelines.

10.For trafficking in “Ice”, the first band is up to 10 grammes, 3 to 7 years.  So the amount of “Ice” that would attract a sentence of 2 years could only be minimal.  But the presence of heroin does enhance their potency if the two drugs are to be mixed together, and indeed there is evidence of such a mixture in the instant case.  Among the four bags of drugs, police found one of them containing a mixture of heroin and “Ice”.  

11.In Wong Kin Kau, when dealing with the question of mixture of drugs, the appellate court said at the end of paragraph 11 of the judgment that there is no evidence that they had been mixed into a cocktail to enhance their potency, but the potential is there and is something we may take into account. 

12.It is worth noting that it is the potential, not actual mixture, which the court was talking about.  For that matter, the court added 1 and a half years on top of 12 years which they considered appropriate for the amount of drugs found in that case.  That represents an increase of 12.5 per cent.

13.Turning to the instant case, based on the amounts of drugs found, I would add something less than 10 per cent instead. 

14.Now I come to the question of part consumption. In view of what the defendant said in his interview with the police, as stated in the facts of the case, that he took the drugs to a shop in Sham Shui Po for consumption, I clarified it with the defence lawyer yesterday who told the court in no uncertain terms that this was not the defence position.  In other words, the defence would not rely on this as part of the mitigation.

15.The case was adjourned to the following day. The court has the opportunity to go through all the materials submitted by the defence, including the defendant’s own letter to the court.  In the letter, the defendant has written, I quote, that “the drug involved is intended for my own consumption.  Nonetheless, the quantity itself is over the law and be treated as for trafficking purpose.”

16.I therefore raised it with the defence once again about this issue of self-consumption.  In the end, the defence lawyer told the court that one-third of the drugs was for defendant’s own consumption, the rest for trafficking.  I indicated to the defence that on the evidence before the court, I am not prepared to accept part consumption and offered the defence the opportunity to call evidence.  Having taken instructions from the defendant, defence lawyer told the court that there would not be any evidence from the defence but asked the court to look at the defendant’s record again. The fact that he is a drug addict, as counsel submitted, that should allow the court to come to the conclusion that part of the drugs was for defendant’s own consumption.

17.First of all, the fact that a person is a drug user is obviously a factor to be taken into account when deciding whether or not part of the drugs is for self-consumption.  But one must not take it out of context for consideration.  In other words, the court should consider all the circumstances, in particular, the circumstances under which the prosecution say the defendant was trafficking the drugs.

18.Now let us look at the evidence before the court.  The defendant is a CSSA recipient.  At the time when the defendant was intercepted by the police, he was leaving his home with the drugs.  He was going to a shop in Sham Shui Po.  There, he witnessed somebody using drugs, albeit occasionally.  That tells the court that the shop is no ordinary shop.  It could be used as a place for somebody to consume drugs.

19.To me, it would not make any sense that the defendant would choose to consume drugs in a more risky place, a place outside his home like the shop in Sham Shui Po.  Defendant must have realised that that would only increase the chance of his being apprehended by the police.  What we have now is he was going to the shop with the drugs.  He said two-thirds of them are for the purpose of trafficking, one-third for his own consumption.

20.Given what I said about the safe place for defendant to consume drugs, ie his home, I do not accept that on this occasion, when he was making his way to the shop in Sham Shui Po with the drugs, he only intended to traffic two-thirds of the drugs. On the evidence before the court, I come to the only conclusion that he had the whole lot, which is the amount of drugs found on him, for the purpose of trafficking.

21.Now I come to the defendant’s previous convictions.  In his written submission, defence lawyer submitted that:-

“Since the defendant do previous drug-trafficking record, no doubt the court would impose enhancement on sentencing, and we respectfully leave the matter to this honourable court’s discretion.” (Para 3.6 of the written mitigation)

22.I understand from this that the defence accept the defendant is a repeat offender of the same or similar crime, and it would be right for the court to enhance sentence on this ground.  But looking at the defendant’s record, his last conviction relating to trafficking goes back to 2006, some 10 years ago, for which he was sentenced to 4 months’ imprisonment.  And the one before that was in 1999.  On that occasion, he was sentenced to 9 years’ imprisonment.  He has another one in 1995 for which he was sentenced to 5 and a half years.  Two more in 1990, 2 years’ imprisonment each on both occasions.  And for the one in 1986, he was sentenced to 5 and a half years.

23.It is true to say at least on record that the defendant had not engaged in trafficking activities for the past 10 years except for the present case, and for this reason, I do not intend to increase the sentence this time. 

24.For the amount of drugs found in this case and in accordance with the guidelines set down in Ching Kwok Hung, I take 6 years as a starting point.  And for the potential of a mixture of the drugs, I adjust the starting point upwards by 6 months to 6 and a half years.  That is an increase of 8.3 per cent. 

25.As far as mitigation is concerned, apart from his guilty plea, there is nothing of substance.  Deducting one‑third for his plea, he is sentenced to 4 years and 4 months’ imprisonment.