HKSAR v. Chan Kam Che

HCCC 393/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 393 OF 2016

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

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COURT: This is the court’s sentence.

Background and the Facts

The accused pleaded guilty in the Eastern Magistrates Courts to the following charges:

(1) Possession of a dangerous drug;

(2) Trafficking in a dangerous drug; and

(3) Possession of an offensive weapon in a public place, contrary to section 33(1) and (2) of the Public Order Ordinance, Chapter 245.

He was committed to this court for sentence. This morning, the accused confirmed his pleas before me and accepted the Summary of Facts.

Briefly, the accused was stopped by the police in the small hours of 12 February 2016 as he was acting furtively at the time. Upon search, the drug particularised in Count 1, that is 0.96 gramme of a crystalline solid containing 0.95 gramme of methamphetamine hydrochloride, that is ‘Ice’, was found in a cigarette box inside his right trousers pocket. Under caution, the accused admitted that the drug was for his own consumption.

Separately, the police also found a beef knife inside the rucksack which was carried by the accused at that time. I have examined the knife in court; it is with a sharp edge and blade and it can be described as a lethal weapon. This is the subject matter of the possession of an offensive weapon in a public place in Count 3. Under caution, the accused claimed that he intended to bring the knife back to his home for cooking and forgot to take it out. The accused also said that the paper sheath was made by him.

After the accused was brought back to the police station and upon a further search, a bag containing seven packets of ‘Ice’ was found on the accused’s person. Under caution, the accused admitted having agreed to deliver the drug to Jordan for a reward of a few hundred dollars. He confirmed the same in a subsequent video-recorded interview. The drug in these seven packets was examined to be 9.94 grammes of a crystalline solid containing 9.81 grammes of ‘Ice’.

The estimated street value of the drug was about $3,300. This is the subject matter of the 2nd count.

The Accused’s Background and Mitigation

The accused is aged 50 and is divorced. He was educated up to Form 1 level in Hong Kong. At the time of his arrest, the accused was a decoration worker, earning about $20,000 per month, giving about $1,000 to $2,000 to his elderly mother for her maintenance.

The accused has got ten previous criminal convictions including two offences of trafficking in a dangerous drug, four of possession of a dangerous drug, indecent assault, attempted theft, riot and arson. He was last discharged from the prison in July 2009.

In mitigation, a letter written by the accused himself was handed to the court in which he stated that although he has had a number of criminal convictions, his elderly parents still supported him. He told the court that he would therefore never reoffend again and he asked for a lenient sentence.

Sentencing Considerations

The tariffs for trafficking in ‘Ice’ were laid down in Attorney General v Ching Kwok Hung [1991] 2 HKLR 125 and corrected in HKSAR v Capitania, CACC 28/2004, 11 August 2004 (unreported). For trafficking up to 10 grammes of ‘Ice’, a term of 3 to 7 years’ imprisonment is called for. Recently, the above guidelines were revised by the Court of Appeal in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 but the revision does not affect this band of the amount of ‘Ice’ involved here.

In HKSAR v Mok Cho Tik [2001] 1 HKC 261, the Court of Appeal observed that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months’ imprisonment. As for the offence of possession of an offensive weapon in a public place, there is no tariff.

This Case’s Sentence

Having considered the facts of this case and the amount of ‘Ice’ involved in the respective charges, I am going to adopt the following starting points: one of 12 months for Count 1; one of 7 years for Count 2; and one of 9 months for Count 3. The accused pleaded guilty at the committal stage and he would receive a one-third reduction in sentence. Other than this, there is nothing which would warrant any further reduction in sentence.

For the 1st count, 12 months reduced by one-third, is 8 months’ imprisonment. For the 2nd count, 7 years reduced by one-third, is 56 months’ imprisonment. For the 3rd count, 9 months reduced by one-third, is 6 months’ imprisonment.

These are separate offences and the sentences should be served consecutively. However, having considered the totality principle, I take the view that an overall sentence of 60 months should sufficiently reflect the accused’s overall criminality in this case. As such, I order that both terms in respect of the 1st and the 2nd counts are to run wholly concurrently while 4 months of the term imposed for the 3rd count are to run wholly consecutively to those of the 1st and the 2nd counts, resulting in a total term of 60 months’ imprisonment.