HKSAR v. Chan Pui

HCCC 415/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 415 OF 2015

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

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COURT: Mr Chan, please stand up. Mr Chan, by reason of your plea today you have been formally convicted of one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. You have now admitted that on 5 March 2015 in the area of Ching Ping Street, Yau Mau Tei, Kowloon, that you had with you 27 grammes of methamphetamine hydrochloride, which is commonly called “Ice”. It had a street value at that time of $10,930.

At the time of arrest, Mr Chan, you attempted to flee and you remained silent on caution as is, of course, your right. But in interview you denied that the drugs belonged to you and in fact suggested that they had been planted by the police. As a result of your plea today, you clearly admit now that you were trafficking in dangerous drugs at that time.

You are 61 years of age and you have a criminal record going back to 1977, at which time you were just 21. That is 40 years, Mr Chan. Both Mr Chau and Mr Melwaney have addressed me upon your previous offending for similar offences, the last of which was now some time ago in 2009. But I am afraid to say that there must come a point in time when the accumulation of offending suggests to the court a total disregard for the criminal justice system. Most of those in your early criminal career were for gambling and for operating a gambling establishment and for which you were fined. Then, in 1995, you received a fine for possession of dangerous drugs and you moved into the unlawful possession of dutiable goods trade in 1996, with a further possession of dangerous drugs in 1999 for which you were given a DATC order as Mr Chau pointed out. None of those earlier brushes with the law have had any effect because in 2001 you were prosecuted again for gambling and for operating a gambling establishment and for possession of goods with a forged trademark, all of which, lucky for you, were dealt with by way of fines.

You did not receive your first term of imprisonment until 2003, at the age of 48, for further copyright offences and that was a lesson that you did not learn from, Mr Chan, because in 2005 you received another term of imprisonment for similar offending. Your life of crime does not end there because the following month you were given both a 16-month and a 24-month consecutive sentence for trafficking in dangerous drugs, which must have been an offence committed before you were sent to prison for the copyright offences in April 2005. That would have been a total of 40 months of which I imagine you served something in the order of 30 months. And yet, in February 2009, you were dealt with once again for possession of dangerous drugs and for trafficking, receiving a further 22 months. From the last matters on your record in January of 2010, I assume you had spent some time on remand for those drugs matters and must have been released earlier than April 2010. In any event, you clearly must have been reoffending immediately.

All in all, Mr Chan, you have an appalling record of repeat offending and absolutely no respect for the law. The only thing that can be said in your favour is that you have not been before the courts between 2011 and 2015. I have considered HKSAR v Cheung Kwok Yip, Peter, CACC 268/2009, and HSKAR v Chan Pui Chi, [1999] 2 HKLRD 830. And although obviously a person is not to be sentenced twice for the same offence as he will have already served his sentence for that previous offending, the court does have the ability to look closely at a defendant’s previous offending history as it is relevant both to the defendant’s ability to be rehabilitated and to the likelihood of whether he will be deterred from further offending.

Sentencing is not after all, Mr Chan, a one-size-fits-all exercise and the particular circumstances before the court must be taken into account if the defendant is to be treated fairly whilst at the same time the interests of justice are served and the public are properly protected against further offending. The fact that you have an extensive offending history, some of which are for the same type of offence, your age now, the period over which you have been offending, the type and length of sentences that you have received and your attitude to those sentences, including the speed at which you re-offend, suggests that you have literally led a life of crime and there is currently no end in sight. In those circumstances, the court is entitled to take this into account as an aggravating feature when considering the appropriate starting point for sentencing in this matter.

I have of course listened to everything that Mr Chau has said most ably on your behalf. You are clearly a drug addict and you were in receipt of CSSA, so you have no spare cash to pay for that drug habit. As a result you simply choose to traffic in dangerous drugs to pay for your own drugs. According to CAAR 15/1990, Attorney General v Ching Kwok Hung, one-tenth of a gramme of “Ice” would be sufficient for three to four hits, and “Ice”, as you know, can be used and re-used with its effects lasting between 2 and 12 hours, the average being of course in the middle of that range. 27 grammes represents 810 to 1,080 hits. At three hits a day that would be a year’s supply. However, I accept what Mr Chau has urged upon me that you are a chronic user of methamphetamine and that one-third of the amount that you were found with would be used up by you within nine days.

Mr Chan, I will give you the benefit of the doubt. According to HKSAR v Chow Chun Sang, CACC 135/2011, and HSKAR v Tam Ling Yuen, CACC 159/2015, it is open to the court to discount the starting point I will adopt by between 10 and 25 per cent, inclusive of any element of the latent risk that you would nevertheless supply some of those drugs, that you had intended to consume yourself, to others. Mr Chau naturally asked that I choose the upper-end of the scale; I cannot be that generous. The guideline case for trafficking in “Ice” is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The starting point after trial for between 10 to 70 grammes is 7 to 11 years, as Mr Chau has said, and therefore for 27 grammes, the starting point after trial would be 8 years and 3 months or 99 months. I will deduct 18 months for the fact that you would have consumed one-third of those drugs, which makes that sentence one of 81 months.

But there is the aggravating feature of your previous offending which includes, amongst other crimes, trafficking and possession in dangerous drugs in 1995, 1999, 2005 and 2009, and now in 2015. This must stop, Mr Chan, or you will find yourself in prison for ever increasing amounts of time over the remainder of your life. I will enhance your sentence by 9 months, making a total of 7 years and 6 months, which will then be discounted for your plea of guilty, entered only today and not, I note, at the first

opportunity, no doubt now done because of the very sensible advice of your defence counsel. Mr Chan, you will go to prison for 5 years.