HKSAR v. Kwan Chi Cheung

HCCC 177/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 177 OF 2017

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

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COURT:

Defendant, you pleaded guilty to a charge of trafficking in dangerous drugs on 22 May 2017, before a magistrate at the Eastern Magistracy. As a result of your plea of guilty, you were committed to the Court of First Instance for sentence.

You admitted that on 14 July 2016, at Kai Ching Estate Car Park, Muk Hung Street, Kowloon, you unlawfully trafficked in 17.73 grammes of a crystalline solid containing 17.32 grammes of methamphetamine hydrochloride, 92.77 grammes of a solid containing 57.26 grammes of ketamine and 2.30 grammes of a solid containing 2 grammes of cocaine.

At about 7.22 am on 14 July 2016, you were found sitting in the driver’s seat of a private car at the carpark by a security guard. It is said in the admitted Summary of Facts that you were unconscious. The prosecution in this case tells me that the security guard attempted to wake you up by shouting at you and knocked on the car but there was no reaction from you and your eyes were closed.

Police officers were called and they arrived at about 7.55 am. Defence counsel tells me when the police officers arrived, the police officers shouted and you then woke up. She said you were fast asleep at the time. You were found then to be a wanted person in connection with a case of criminal damage and several cases of non-payment of fines.

Upon a search of yourself and the private car, the drugs were found as mentioned in the charge. Many empty transparent resealable plastic bags and an electronic scale were also found inside the glove compartment of the car. This car was confirmed to belong to you.

The estimated retail value of the drugs at the time of the seizure, for the methamphetamine was $6,355; for the ketamine, $22,079; for the cocaine, $2,606.

You admit and accept that you were trafficking in the dangerous drugs in this case.

Defendant, you are 28 years of age, divorced, with a 10‑year-old son, living with your parents. You have six previous convictions on five previous appearances at court. Three of those convictions are related to drugs, being for possession of dangerous drugs. The last one was in 2011 for which you were sentenced to drug addiction treatment centre.

Ms Sabina See, your counsel, in her written mitigation informed me that when you were admitted into Lai Chi Kok after the arrest for this offence, your urine test conducted on 16 July 2016 was positive for ‘Ice’ and cocaine, and on 18 July, it was still positive for ‘Ice’. From these tests conducted, it is clear to me that you were still consuming drugs. Ms See in fact says that a small part of the ‘Ice’ and cocaine was for your self-consumption. She however is not mitigating on the basis that the starting point should be reduced as a result of the self-consumption.

I have received letters from your son, your mother, your elder sister, second elder sister, fourth elder sister and brother-in-law. They are very moving and heartfelt letters, pleading for leniency on your behalf. No doubt you are much and will be much missed by your family, particularly your son and mother. As a result of your committing this offence, you have left your young son in the care of his elderly and frail grandparents. If you have not had a chance to read the letters, then you should do so, so that you know the effect that you have had on your family as a result of you committing this offence.

Ms See tells me though that during the last year or so you have been on remand, this has taught you a lesson and that you are determined to start anew. I sincerely hope that is so. What is more promising is the fact that your former employer has promised to keep a job for you upon your release.

For this offence of trafficking in dangerous drugs, there are clear guidelines for sentencing for these drugs involving ‘Ice’, ketamine and cocaine. You have been trafficking in all these three kinds of drugs. Although each drug has different sentencing guidelines, I shall take a combined approach when sentencing you to what is commonly known as a cocktail or batch of different drugs. The most potent drug amongst these drugs is that of ‘Ice’. I shall therefore take ‘Ice’ as the main drug and for the purposes of sentencing, I shall be converting the ketamine and cocaine as though those were ‘Ice’ and sentence you on an overall basis of ‘Ice’.

The relevant authority for sentencing for trafficking in ‘Ice’ is Tam Yi Chun. For an amount of 17.32 grammes, that falls within the bracket of 10 to 70 grammes and calls for a sentence of between 7 to 11 years’ imprisonment, after trial. For that amount of ‘Ice’, an appropriate starting point after trial would be one of 7 years and 3 months’ imprisonment.

For the ketamine, the amount was 57.26 grammes. The relevant sentence case traffic case is Hii Siew Cheng. In Hii Siew Cheng, the bracket is one of between 50 and 300 grammes which calls for a sentence of between 6 to 9 years’ imprisonment, after trial. Therefore, the appropriate starting point for this amount of ketamine, after trial, will be one of 6 years’ imprisonment. In converting this amount of ketamine to ‘Ice’, it would be approximately 8 grammes of ‘Ice’.

I turn now to cocaine. The guideline case for trafficking in cocaine is that of Lau Tak Ming. For trafficking in 2 grammes of cocaine, that would warrant a starting point of 2 years 6 months after trial, and that would equate to less than 1 gramme of ‘Ice’.

In converting the ketamine and cocaine to ‘Ice’, it would then be added to that of the full amount of ‘Ice’, 17.32 grammes, which equals to approximately 25.5 grammes of ‘Ice’. I shall therefore sentence you on the basis of a sentence after trial of 25.5 grammes of ‘Ice’, an appropriate starting point for that amount would be one of 8 years’ imprisonment.

Your strongest mitigating factor is, of course, your early plea of guilty and for that I shall afford you the one-third discount and you shall be sentenced to 5 years and 4 months’ imprisonment.

I make no deduction for self-consumption, nor do I make any enhancement for the cocktail of drugs.