HKSAR v. Chan Wing Yee

DCCC 260/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 260 OF 2017

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REASONS FOR SENTENCE

1.Chan Wing Yee you have pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance[1] and one charge of managing a divan, contrary to section 35 of the Dangerous Drugs Ordinance.

2.Full particulars of the offences are set out in the facts admitted by you yesterday. In summary on the morning of 19 December last year the police broke into a flat on the 1st floor of No. 1040 Canton Road in Mong Kok.  You were found kneeling beside a table inside the living room together with five other persons.

3.Inside the flat the police found on the table two betting tickets with traces of a powder containing heroin and midazolam.  Inside your shoulder bag the police found, inter alia, one plastic bag containing six packets containing a total of 1.62 grammes of a crystalline solid containing 1.59 grammes of methamphetamine hydrochloride (‘ice’); two tablets containing a total of 0.02 gramme of midazolam; two smartphones; and $400.

4.The police also found thirty-four syringes; one roll of tinfoil; one calculator; a piece of paper containing a list of customers; a pair of scissors; a plastic spoon; a roll of plastic bags; an electronic scale; two lighters and pieces of burnt tinfoil.

5.Under caution and in a video interview you admitted, inter alia, that you sold heroin to customers of the flat who went there to consume dangerous drugs; a small bag of heroin containing about 0.25 gramme was sold for $200 and a larger bag containing about half a gramme was sold for $400; the midazolam was sold for $60 a tablet; and that the $400 found in your shoulder bag was the sale proceeds of dangerous drugs. 

Mitigation

6.In passing sentence, I have carefully considered everything said on your behalf by Mr Chan together with your mitigation letter and a letter from Ms Poon Pui Ling of the Christian Prison Pastoral Association.  I take into account you have no previous convictions for trafficking in drugs or managing a divan.

Charge 1 - Trafficking

7.In HKSAR v Tam Yi Chun[2] the Court of Appeal recast the sentencing guidelines for trafficking in ice.  The starting point after trial where the quantity of narcotic is up to 10 grammes is between 3 and 7 years’ imprisonment. Mr Chan submits that 1.59 grammes of ice is a small quantity whereby the court can adopt a lower starting point than three years. 

8.The guidelines for drug trafficking are not strait-jackets[3]. There can be no doubt that a court has a discretion in sentencing.  In Secretary for Justice v Hii Siew Cheng[4] the Court of Appeal in setting guidelines for ketamine specifically provided that for trafficking in quantities up to one gamme the sentence is within the sentencer’s discretion.  No such discretion is specifically provided for in the guidelines for ice or heroin. 

9.In support that a lower starting point is appropriate for 1.59 grammes of ice Mr Chan relies on the judgment in HKSAR v Yeung Kam Chun[5]where the amount of ice was also 1.59 grammes[6].

10.The trial judge sentenced the defendant to two years’ imprisonment.  The Court of Appeal in rejecting the argument that the starting point of two years was too generous and should have been three years instead said[7]:

“For the trafficking of smaller amounts of ice, the sentencing judge was not obliged to start with three years and it would be within the discretion of the sentencing judge to adopt a lower starting point in consideration of the actual amount of ice involved.”

11.This approach has been followed for example in HKSAR v Lee Yin Yui where the court held that a two year starting point was appropriate for selling 0.51 gramme of ice to a teenager[8]; in HKSAR v Tsang Chi Wah where the court held that a three year starting point was appropriate for selling 1.07 gramme of ice, the applicant having three previous convictions for trafficking[9]; and in HKSAR v Tang Tsz Yan & another where the court held that a two year starting point was appropriate for selling 0.08 of a solid containing an unmeasurable quantity of ice, 0.24 and 0.68 gramme of ice[10].

12.In HKSAR v Choi Hoi Kit[11] the applicant pleaded guilty to one charge of trafficking in ketamine, ice and nimetazepam.  The quantity of the ice was 0.78 gramme.  After referring to HKSAR v Yeung Kam Chun and noting the applicant had nine previous convictions (three of which were for possession of drugs and one for possession of equipment for taking drugs[12]), the Court of Appeal said that if the applicant had been charged with one single count of trafficking in 0.78 gramme of ice they would not say that a 3-year starting point was necessarily manifestly excessive[13].   

13.Taking into account the ice found in your handbag was divided into six packets and therefore represented six separate sales of ice to customers in the divan; you have a long history of drug addiction having been to a DATC in 1997, 2004, 2007 and 2013; and you have two convictions for possession of drugs in 1997 but none for trafficking, I am satisfied in all the circumstances a starting point of 3 years’ imprisonment is appropriate for trafficking in 1.59 grammes of ice.  

Nature of the dangerous drug

14.You told the police the drug was heroin.  In court you maintained that you believed you were selling heroin.  In sentencing for trafficking in dangerous drugs the court may consider as a mitigating factor a defendant’s mistaken belief that he was trafficking in a less serious dangerous drug instead of the one he was actually trafficking in[14].

15.Having told the police at the time of arrest the drug was heroin and traces of heroin were found in the flat together with equipment for taking heroin, I accept you believed that the six packets were heroin.   In addition, the prosecution does not seek to challenge that you believed the drugs were heroin.

16.You are however still to be sentenced on the tariff applicable for ice but given a discount on account of your mistaken but genuine belief the drug was heroin.  I am satisfied the starting point is to be reduced by 6 months to 2 years and 6 months’ imprisonment. 

17.I disregard the small amounts of heroin and midazolam, which I am satisfied do not add to the overall criminality of the charge.  

18.Giving you full credit for your plea of guilty reduces the sentence to 1 year and 8 months’imprisonment.

Charge 2 – Managing a divan

19.There are no guidelines for offences of managing a divan, the maximum sentence for which is 15 years’ imprisonment and a fine of $5,000,000.   Immediate sentences of imprisonment are imposed ranging from 12 months in the Magistracy to 3 years and 6 months imprisonment in the District Court[15].

20.Mr Chan refers the court to two cases HKSAR v Tsang Hin Chung[16]and HKSAR v Yim Cheong Wa[17] where starting points of 2 years were adopted[18].  These two cases highlight the apparent inconsistency in sentencing for offences involving divans.  The facts of Yim Cheong Wa appear much more serious yet the same starting point was adopted as that in Tsang Hin Chung.

21.In HKSAR v Cheung Yiu Fai, Alex the Court of Appeal upheld a starting point of two years where the applicant, a drug addict, had been the keeper of a flat for two days earning $450 per day[19].

22.You told the police that the day of arrest was the first day you worked in the flat and that you would be paid $1,200 for working 24 hours.  You are also a drug addict. 

23.You were managing a well organised operation which sold different quantities of heroin and midazolam tablets.  On the day of arrest there was five other persons in the premises; the piece of paper seized by the police indicated that there were at least 20 customers of the divan[20]; and syringes and tinfoil were provided for consuming the drugs.  Taking into account all the circumstances I am satisfied a starting point of 2 years’ imprisonment is also appropriate.  Giving you full credit for your plea of guilty reduces the sentence to 1 year and 4 months’ imprisonment.

Totality

24.I am satisfied that managing a divan is an aggravating feature for which a consecutive sentence is appropriate subject to totality of sentence to be imposed. In HKSAR v Cheung Yiu Fai, Alex the Court of Appeal said at least 12 months should have been made consecutive to the trafficking charge and that it may be the applicant could not have complained if the sentence had been made to run wholly consecutively to the sentence for trafficking.  

25.Having taken into account that the trafficking charge involved six separate sales in the divan, I am satisfied only 6 months of the sentence on charge 2 is to be served consecutively making an overall sentence of 2 years and 2 months’ imprisonment, which I am satisfied properly reflects your criminal culpability on the two charges.

26.You are convicted and sentenced as follows:

Charge 1 – 1 year and 8 months’ imprisonment; and

Charge 2 – 1 year and 4 months’ imprisonment, 6 months consecutive and 10 months concurrent to charge 1.

Total sentence to be served by you is 2 years and 2 months’ imprisonment.