HKSAR v. Chan Ming Kin

HCCC 325/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 325 OF 2016

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

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COURT:

Defendant, you have pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. You admitted that on 18 August 2015, at Flat A, Rooftop, Tai Foo House at Hong Cheung Street, Sai Wan Ho, in Hong Kong, you unlawfully trafficked in 23.5 grammes of a crystalline solid containing 23.4 grammes of methamphetamine hydrochloride and 249.8 grammes of a powder containing 200.5 grammes of ketamine.

On 18 August 2015, police officers conducted an operation in respect of those premises. They were in possession of a search warrant for those premises. These premises were your residential premises which you had rented, in your name, for a period of one year from February 2015 to January 2016 at a monthly rent of $6,300.

At about 10 pm that day, police officers intercepted you and another Chinese male in the staircase opposite the premises. A police officer seized a bunch of keys from you which was used to open the door to the premises. Inside the premises were two Chinese males and a Chinese female found in the room on the left and another Chinese female in the room on the right.

The drugs as stated in the charge were all found in the room on the left. The ‘Ice’ was found in two resealable plastic bags and the ketamine was found in 17 resealable plastic bags. Other paraphernalia related to dangerous drugs was also found in that room. They were four smoking pots or devices, a silver electronic scale, a purple spoon, a pair of scissors, a glass tube, approximately 300 unused resealable plastic bags, a black lighter and one black notebook.

In a video-recorded interview conducted on the following day, you admitted that the black notebook was used for accounts in trafficking in dangerous drugs. You also admitted that you maintained your living entirely relying on trafficking ketamine from 2015. The other paraphernalia found in the room was used in connection with dangerous drugs. The cash of $1,200 was also obtained by trafficking in dangerous drugs. You also admitted you would smoke dangerous drugs when having fun in the room on the left. You had a habit of consuming drugs.

The estimated street value of the ‘Ice’ at that time was $7,731 and of the ketamine found was $32,224. The total street value was therefore $39,955.

Your counsel, Cannise Chan, has mitigated fully and thoroughly on your behalf before me. You are 25 years of age. You are unmarried but are a father to a 13-month-old baby. The mother of your baby is your fiancée and you, at that time of commission of this offence, were drug-dependant. This is evidenced by the Chief Superintendent of Stanley Prison in a letter stating that when you were admitted to the Lai Chi Kok Reception Centre immediately after your arrest for this offence, there was a positive result in your urine for amphetamine upon admission.

I have also had submitted to me six letters of mitigation, one written by yourself, your mother, your girlfriend, your elder sister, a reverend parish priest from St Teresa Church, and a letter from your friend, Mr Leung. All these letters certainly throw light on your character and background generally and I have taken them all into account.

It is clear from your letter that you committed this offence due to the financial pressure that you had at the time and succumbed to temptation of money. You and your fiancée were both gainfully employed in the same company of which you worked as a chef. However, in the beginning of 2015, the company suddenly closed down and both of you lost your jobs. Prior to that time, you had rented a flat and borrowed money. Unfortunately, after you were made redundant, you were unable to find a stable job to pay off the loan. You also found that your fiancée was pregnant. As the financial pressure became serious, you then committed this offence.

Form your words spoken in the letter, which I hope are sincere, you are remorseful for your crime and you have reflected that through your plea of guilty. The other members of your family and character reference letters speak well of you and that you are a good young man, father and partner. Your two previous convictions are unrelated to drugs and they were committed some time ago.

Your strongest mitigating factor, as Ms Chan has rightly said, is your plea of guilty. The fact that you were drug-dependant at the material time and that part of the drugs was for your own consumption, as I informed Ms Chan, is not a mitigating factor to reduce the starting point, as Ms Chan has said that only a small part of the drugs was for your own consumption. As stated in Wong Suet Hau, Ice, if mitigation is to take place for a reduction of sentence in respect of consuming drugs for one’s own consumption, it should be a large proportion of the drugs and not a small proportion.

I can see no aggravating factors in this case. Ms Chan has referred to the appropriate guideline cases in sentencing you for trafficking in ‘Ice’ and ketamine. In the case of Tam Yi Chun, for quantities between 10 and 70 grammes of ‘Ice’, the appropriate starting point, after trial, would be one of 7 to 11 years’ imprisonment. The guideline case for ketamine is that of Hii Siew Cheng, and for between 50 and 300 grammes, the starting point, after trial, would attract a term of between 6 to 9 years’ imprisonment.

In the present case, there are two types of drugs, that of ‘Ice’ and ketamine. I would take the combined approach, that is using one starting point to be based on the total narcotic of the most serious drug. The most serious drug here is that of ‘Ice’. For the quantity of 23.4 grammes of ‘Ice’, in following the guideline case, had you been convicted after trial, I would have taken a starting point of 7 years and 9 months’ imprisonment, and following the guideline case of Hii Siew Cheng, for the amount of 200.5 grammes, an appropriate starting point, after trial, would be one of 7 years and 9 months’ imprisonment.

To take the appropriate starting point, I would use the conversion test to convert ketamine to that of ‘Ice’. This amount of ketamine would convert to approximately the same amount of ‘Ice’; presently, that is about 23.4 grammes. Therefore, using this total narcotic quantity of 46.8 grammes of ‘Ice’ as the appropriate starting point, had you been convicted after trial, I would have taken a term of 9 years and 3 months’ imprisonment.

Giving you full credit for your plea of guilty, you will be sentenced to a term of 6 years and 2 months’ imprisonment.