HKSAR v. Chan Yun Kwong

HCCC 30/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 30 OF 2017

-----------------

-----------------

---------------------------------

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

---------------------------------

COURT:

You pleaded guilty to one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, on 6 February 2017, before the Eastern Magistracy. That charge involved 24.27 grammes of methamphetamine hydrochloride, 4.41 grammes of heroin hydrochloride and 48 tablets containing 0.60 grammes of midazolam.

The Summary of Facts has been read out to you and you have confirmed that they form the basis of your plea.

On 16 May 2016, your home address was the subject of a police raid. You were found in your bedroom and in that same room, the police recovered the drugs in question contained in a white plastic container on a table in which were various plastic bags and the midazolam was in several foil packs. Along with that, they recovered 63 empty resealable plastic bags and electronic scales. Separate from that, they recovered a Tupperware-type plastic box containing 2.64 grammes of heroin hydrochloride.

In your video-recorded interview, you said that you had purchased the drugs just two to three days previously. I doubt that you purchased all of them at that time from the same supplier as they are quite different in their appearance and packaging, as are the foil packs of midazolam.

You said that the drugs were divided into smaller bags for personal consumption. I doubt that also, as you were on CSSA and received $8,256 approximately to support yourself and your mother, including rental, food, utilities, clothing and transport. You were unemployed and had no means of financial support consistent with being able to feed a drug habit which you say you have had for over 30 years, certainly not the drug habit which you originally suggested that you had.

You said the drugs in question cost you $2,000 for the “Ice’ and $2,000 to $3,000 for the heroin hydrochloride. But the street value was $7,752 for the ‘Ice’, $4,245 for the heroin hydrochloride and $2,976 for the midazolam, if it was not prescribed which, by your plea, you accept it was not.

It does not appear that you purchased drugs in bulk and therefore there is significant difference between what you said you paid and what is likely to be the actual cost to you at that time. You also said that you consumed 2 grammes of ‘Ice’ per day and that you threw away the paraphernalia for smoking the ‘Ice’ after you had used it. I do not believe that either. I have never come across that suggestion before. If you were a constant user of ‘Ice’, the paraphernalia would have been there to see. Although I do accept that three days after your arrest, you still had amphetamine in your system.

The Court of Appeal in Attorney General v Ching Kwok Hung [1991] 2 HKLR 125, as accepted in HKSAR v Tam Yi Chun [2014] 4 HKC, considered average consumption rates of ‘Ice’ and these provide a benchmark around which to analyse the particular facts of a case involving ‘Ice’. In that case, it was said that one-tenth of a gramme of ‘Ice’ is sufficient for three to four hits, although 1 gramme can provide 10 to 15 hits.

‘Ice’ can be used and reused; its effects last between two and 12 hours as opposed to crack cocaine under which the high lasts 20 to 40 minutes. It is more addictive than heroin and a user can be hooked after the first hit, but constant use burns the body out and damages vital organs and whilst prolonged use requires greater and greater quantities to obtain the same effect, it also leads to significant mental health problems and ultimately death.

You are not mentally ill, Mr Chan, nor do you look physically the worse for wear having consumed drugs over a number of years. Your suggestion that you consume 2 grammes a day, which would be 30 hits each lasting, even at the lowest rate, two hours, a total of 60 hours is mathematically and physically impossible.

Mr So urges the court to accept that some part of what was recovered was for your consumption. He says that you instructed him to suggest that it was a quarter of the amount recovered but when taxed with this and the fact there was no evidence to support that assertion, he asked the court to accept that some amount was for your own use and that you would accept the court’s determination of what that amount was as you were told you could have a Newton hearing without risk to your one-third discount for plea, but had decided you do not wish to avail yourself of that opportunity.

Accordingly, taking into account the expert evidence given in Ching Kwok Hung, your age, the number of years you have been consuming drugs, plus the character and the nature of the drugs seized and the likelihood of frequent small resupply, I am of the view that you would have had about 3 grammes for your own consumption. That is just over, in fact, 10 per cent of all of the drugs recovered.

You are 49 years of age, unemployed and a drug addict, living at home with your mother. You have a criminal record dating back to 1989 and matters relating to drugs dating back 1993, if I do not take into account the matter in which you were a youth. In all, you have been before the court seven times for possession of drugs or drug-related offences for which you have received non-custodial, custodial sentences and DATC. None of that worked because you say you are a drug addict. But this is your first offence for trafficking in dangerous drugs.

You have pleaded guilty to trafficking in a cocktail of drugs, 24.27 grammes of ‘Ice’, 4.41 grammes of heroin hydrochloride and 48 tabs, or 0.60 grammes of midazolam. In the normal course of events, if these had been individually charged, the relevant sentencing guideline for ‘Ice’ is HKSAR v Tam Yi Chun. For between 10 and 70 grammes of ‘Ice’, the range of sentence after trial would be 7 to 11 years, and for 24.7 grammes, the starting point would be around 7 years and 10 months.

The 4.41 grammes of heroin hydrochloride falls to be considered under Regina v Lau Tak Ming [1990] 2 HKLR 370, and for up to 10 grammes, the sentencing range would be between 3 to 5 years. For 4.41 grammes, the starting point would be around 40 months. Finally, the midazolam in HKSAR v Amnuaychoke Nopporn [2002] 3 HKC 640 at 643, Stuart-Moore, the Acting Chief Judge of the High Court at that time, said:

“The question we have had to ask ourselves is whether the amount of midazolam maleate being trafficked, in this case, 3.8 grammes, should have materially altered the sentence imposed on the applicant for trafficking in this amount of heroin, in this case, it was 15.19 grammes. The narcotic content of the midazolam was just under 4 grammes. We consider that if this had been a further quantity of the much more harmful drug, heroin, as supposed to midazolam, this would not have made more than a marginal difference, if indeed any difference at all, to the starting point the judge had correctly taken for the heroin in question, which in this case had been 5½ years’ imprisonment. For this reason, therefore, we do not think that any further term of imprisonment by way of enhancement of the starting point taken for heroin, should have been incurred.”

The midazolam in this case before me, the total quantity being 0.60 grammes, is even less substantial than that in Amnuaychoke Nopporn. Even if I were to treat the midazolam as heroin or ‘Ice’, the additional quantity would not have made any difference to the sentence for trafficking in heroin or ‘Ice’ as mentioned above. The two together, that is the ‘Ice’ and the heroin, would make a total of 12 years and 2 months.

But there are a number of authorities which provide guidance upon the best way to consider sentencing when there is cocktail of drugs and that will very much depend upon the facts before the court.

HKSAR v Yip Wai Yin & Another [2004] 3 HKC 367, HKSAR v Wan Lau Mei [2014] 4 HKC 75 at paragraphs 34 to 36, and HKSAR v Chan Yuk Leong, CACC 318/2013, provide two different approaches, an individual approach, which is to look at each component of the cocktail or the batch and sentence by adding up the different sentences relevant to each drug - and that is the approach I have already outlined - and the combined approach which involves a calculation of the applicable sentence for the more or most serious drug in terms of potency and then take into account the significant quantities of the other less serious drugs.

As I have said, I have already considered the individual approach which had come to 12 years and 2 months. If I look at the combined approach, if all of the relevant drugs were ‘Ice’, then according to HKSAR v Tam Yi Chun, the starting point after trial would be 8 years and 4 months, that is just a simple amount bulk figure. If it were all heroin, it would be 6 years and 6 months. But as the ‘Ice’ was the substantial bulk of the 29.28 grammes - because I have added it all together including the midazolam - if I converted the amount of heroin hydrochloride directly to ‘Ice’, then the 40 months previously mentioned would be equal to somewhere in the range of 1 to 2 grammes, and if combined with the ‘Ice’ recovered, would amount to 26.47 grammes which falls in the range of 8 years and 1 month as a starting point, which I consider to be appropriate and which was urged upon me by the defence.

I have also taken into account the fact that having a combination of drugs makes the trafficker more attractive to the user than if he sells only one type of drug, and the fact that there is latent risk that the drugs retained for self-consumption will be sold to others if the opportunity arises. As a consequence, I consider the starting point should be enhanced by just 1 month for each of these two factors, so that would make 8 years and 3 months in all.

Mr Chan, you will receive a full one-third discount for your timely plea of guilty at the first opportunity and you will go to prison for 5 years and 6 months.

Amendment of Sentence

There was obviously something lurking in my mind, gentlemen, that made me have another look at it, and this is a very serious matter for your client, I want to make sure that everything was done correctly and what I had not done was I had not taken the 3 grammes off, that is what I considered was for his self-consumption.

So going back to my figures so that we make it correct. When I was originally talking about the individual approach, I had originally said that the ‘Ice’ was worth 7 years 10 months when, in fact, it would have been worth 7 years 9 months. So there was only a month in it at that stage, but that was an approach I did not adopt.

But let us go then on to the combined approach at the end of the day, which is, if all the relevant drugs were ‘Ice’, then according to HKSAR v Tam Yi Chun, the starting point after trial, because now I would be taking 3 grammes off the total amount of drugs, so it would go down to 26.28 as a gross amount of drugs, because of the self-consumption. Then that would have been 8 years 1 month. I had originally said 8 years 4 months. If it were all heroin, it would be 6 years and 3 months, so again, I was still positing the two variations.

But as the ‘Ice’ was the substantial bulk of the gross amount, the original indicted amount of 29.28, but also of the amount after self-consumption, which is 26.28, if I converted the amount of heroin hydrochloride directly to ‘Ice’, then the 40 months that I previously mentioned will be equal to 1 to 2 grammes of ‘Ice’. I have not changed that, of course, because it remains the same.

So if I combine that with the ‘Ice’ recovered which is now the recovered amount less 3 grammes, so it is 23.27 after allowing for the self-consumption, that then falls to be 7 years and 10 months, which I consider appropriate, and therefore, with the enhancement of the 1 month for the latent risk and the 1 month for the cocktail of drugs and being a more attractive supplier, that goes up to 8 years.

Mr Chan, that reduces your sentence from 5 years 6 months to 5 years and 4 months because I have taken into account the amount which I found might have been the amount he would consume himself.