HKSAR v. Chan Ka-ming, Lolo

HCCC 333/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 333 OF 2016

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AND

HCCC 357/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 357 OF 2017

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Before: Hon Zervos J in Court

Date of Hearing: 22 August, 9 November and 8 December 2017

Date of Sentence: 8 December 2017

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REASONS FOR SENTENCE

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Introduction

1.On 22 August 2017, the defendant pleaded guilty to the count on the indictment of HCCC 333/2016 which concerned the offence of unlawfully trafficking in a dangerous drug on 11 April 2016, consisting of 12.7 g of a crystalline solid containing 12.5 g of methamphetamine hydrochloride, commonly known as Ice.  The street value of the drugs at the time of the offence was $3,848.  When taking plea to that offence, Mr Freddy Woon, counsel for the defendant, informed the Court that the defendant had been charged in relation to another drug trafficking offence which was before the Magistrate’s Court for committal.  He informed the Court that the defendant would plead guilty to that offence which would result in him being committed to the Court of First Instance for sentence.  After the defendant was formally convicted of the offence in relation to the first case, his sentence was adjourned to 9:30 am on 9 November 2017 and later to 11.30 am on 8 December 2017 in order for the second case to be fixed before this Court so that he could be dealt with for the two cases at the same time by the same Court.    

The procedural history of the first case

2.On 22 July 2016, the defendant, having indicated he would plead not guilty to the offence, was committed for trial in the Court of First Instance.  On 24 August 2016, his case was listed for a pre-trial review on 16 June 2017 and a five-day trial on 22 August 2017.

3.The pre-trial review took place as arranged, where Mr Woon confirmed that the defendant would contest the allegations against him but that the issue at trial would be that the drugs found on him were for his own consumption.  He also confirmed that there would be no challenge to the caution statements.  However, he added that the defendant was still considering his position and if there was any change of circumstance, the Court would be notified. 

4.By letter dated 20 July 2017, solicitors for the defendant informed the Court that he would plead guilty to the offence which he has now entered. 

The brief facts of the first case

5.The brief facts giving rise to the first offence are as follows.  In the late evening on 11 April 2016, police officers stopped the defendant as he was leaving the building of his residence in Tung Choi Street, Mongkok.  He was searched and found in his left front shorts’ pocket was a resealable plastic bag containing a quantity of Ice, namely 12.7 g of a crystalline solid containing 12.5 g of Ice.  After he was arrested and cautioned, he claimed that the Ice was for his own consumption which he used as a painkiller.  The police also found in his possession a quantity of cash of $3,460.  The police searched his residence but found nothing incriminating inside.  

6.In a subsequent video recorded interview, the defendant admitted that he had been addicted to Ice for two years which he consumed on a daily basis because of a painful foot.  He said he bought the drugs from “Ah B” for $1,300 for half an ounce.  He said he was unemployed and that the cash found in his possession was his savings from casual work at a hotel. 

The procedural history of the second case

7.The defendant was arrested for possession of an offensive weapon and drug trafficking on 4 November 2016 in relation to the second case and brought before the Magistrate’s Court on 7 November 2016. Eventually, the prosecution only proceeded against the defendant on the drug trafficking offence.  After a series of hearings, on 25 September 2017, the defendant pleaded guilty to the drug trafficking offence in the Magistrate’s Court and he was committed to the Court of First Instance for sentence.

The brief facts of the second case

8.The facts admitted by the defendant when entering his plea of guilty to the second offence can be summarised as follows.  In the evening of 4 November 2016, the police mounted a drug operation where the subject was the defendant whose premises were located in a building at 53 Tung Choi Street, Mongkok.  The defendant was observed entering the building and going to the premises.  He was intercepted by police.  He had a key to the premises although there was a friend inside the premises who let the police in.  The friend said he was there to repair the defendant’s television.  The police produced a search warrant and searched the premises.  They found a variety of drugs, namely, one plastic bag containing 16.5 g of a crystalline solid containing 5.8 g of methamphetamine hydrochloride, one plastic bag containing 6.24 g of a solid containing 4.06 g of ketamine, 7 plastic bags containing a total of 3.64 g of a solid containing 2.35 g of ketamine, and 5 plastic bags containing a total of 0.99 g of a solid containing 0.92 g of cocaine.  Also found in the premises were one resealable plastic bag containing 32 unused resealable plastic bags with a blue line, one resealable plastic bag containing 30 unused resealable plastic bags, and one electronic scale.  Apart from the drugs, no other paraphernalia or equipment used for consuming the drugs were found inside the premises.

9.The defendant was arrested and after he had been cautioned he stated that the drugs were for his own consumption.  He was subsequently interviewed during which he explained that he operated under the alias @Dai Mic and that he had lived in the premises for about one year paying a rental of $7,300 per month.  He admitted that the drugs belonged to him which he claimed he bought for $8,000 from a male, who he only knew as @Ah Kit, in a park at Fa Yuen Street about a week before.  He said he did not know the quantity of drugs that he had purchased.  He said that he separated the drugs into small packets for easy consumption which he stored in a red box.  He said that he consumed methamphetamine twice a week with an “ice bottle” and zinc paper.  He said he had thrown away the “ice bottle”.  He said he packaged the ketamine into the two lots of small packets consisting of the 5 and 7 packets respectively.  He said that the ketamine was used as a painkiller which he consumed twice a week by snorting.  He also said that he had purchased the cocaine in bulk which he separated for consumption with the aid of the “ice bottle”.  As for the unused resealable plastic bags he used them for separating the drugs.  He earmarked bags with the blue line for storing ketamine and the others for storing cocaine.

10.As part of the agreed facts the defendant admitted and accepted that he was in possession of the drugs for the purpose of trafficking.  The estimated street value of the drugs involved at the time of the offence was about $9,980.

The defendant’s background and mitigation

11.The defendant is 36 years old.  At the time of the offences, he was living alone at the residence in Tung Choi Street, Mongkok.  He was educated to secondary level in Hong Kong.  It appears that after he left school he has had a range of jobs truncated by periods of unemployment.  At the time he committed the first offence, he was working as a casual worker in a guesthouse, and at the time he committed the second offence, he claims he was working as a drains cleaner earning a salary of $15,000 per month.  He admits that he has been addicted to smoking Ice since 2014. 

12.The defendant has a long list of prior convictions.  His first conviction was when he was 14 years old for theft for which he was put on probation for 12 months.  He then had a series of vice offence convictions in 2007 and 2008 for which he received short terms of imprisonment.  From April 2009 to October 2013, he had a number of convictions for possession of drugs for which he successively received probation, a drug addiction treatment centre order and a term of imprisonment of 6 months.

13.Mr Woon in mitigation acknowledged that the second case was committed whilst the defendant was on bail in relation to the first case.  This is a serious aggravating factor.  It appears that in relation to the first case in April 2016, the defendant was granted police bail with a cash deposit of $8,000, which was subsequently increased to $20,000 by the court in July 2016 when the defendant on the return date indicated that he would plead not guilty to the offence. 

14.Mr Woon informs me that the defendant committed the offence in the second case in November 2016 because he was short of funds having outlaid $20,000 for his bail.  I do not accept this explanation or as some form of justification for having committed the second offence. 

15.Mr Woon also informs me that what the defendant had said in his record of interviews in the two cases, and as set out in the two sets of admitted facts to which the defendant had agreed when he pleaded guilty to the two cases, was false.  He acknowledged that the drugs in question were not for self-consumption and this point was not being advanced as part of the defendant’s mitigation.  He said that on his client’s instructions, the situation in the first case was that “Ah B” asked him to store the drugs for a reward of $500 which he was to deliver to someone in Shantung Street in Mongkok when he was intercepted by the police.  The situation in the second case was that having had his bail increased to $20,000, he needed money and he agreed to store the drugs that were found in the red box for “Ah B” for a reward of $2,000.  I do not accept what has been submitted as it is contrary to the agreed facts and what is known about the two cases.  I also note that it was claimed in mitigation that at the time of the second offence he was working as a drains cleaner earning $15,000 per month.  The first case occurred in April 2016 and it would appear that the bail was increased in July 2016.  The second case occurred in November 2016 some four months after he has paid bail of $20,000.  According to the agreed facts, the drugs were found in a red box but a quantity of resealable plastic bags and an electronic scale were found elsewhere in the premises.  He claimed in his interview that he purchased the drugs from @Ah Kit and made no reference to “Ah B”.  Mr Woon submitted that on his instructions, the defendant stored all these items for “Ah B” in the red box, but that was not how the police found the items when they searched his premises. 

16.In any event, the defendant even on the accounts now being given was involved in the trafficking of drugs.  However, I am not prepared to accept what has been submitted to me that is contrary to the agreed facts. 

17.Other than his pleas of guilty, no meaningful mitigation was submitted that would warrant a reduction to his sentence.

The relevant sentencing guidelines

18.The first case concerns the trafficking in a quantity of Ice.  On 9 June 2014, the Court of Appeal in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 revised the sentencing tariffs for a person convicted of trafficking of Ice as contained in AG v Ching Kwong Hung [1991] 2 HKLR 125.  The narcotic content of Ice of 12.5 g falls within the band of 10 to 70 g where the sentence after trial ranges from 7 to 11 years’ imprisonment.  On an arithmetic calculation for this quantity of drugs, a starting point of 7 years and 2 months’ imprisonment should be adopted. 

19.The second case concerns various quantities of different drugs, namely 15.8 g of Ice, 6.41 g of ketamine and 0.92 g of cocaine.  I will take a combined approach in calculating an appropriate starting point.  As the largest quantity of drugs was in relation to Ice, I will combine the narcotic content of the other drugs with that of the Ice which amounts to 23.13 g.  I note for quantities of less than 10 g that the tariff guidelines for ketamine and cocaine are slightly less than that for Ice.  See HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  This would warrant a slight adjustment for this factor.  However, I bear in mind that the trafficking involved a variety of drugs which is an aggravating factor.  I will therefore make no adjustment.  On an arithmetic calculation for a quantity of 23.13 g of Ice, a starting point of 7 years and 10 months’ imprisonment should be adopted.  If I had calculated the starting point by taking an individual approach, it would have far exceeded the term of imprisonment as calculated by taking the combined approach.

20.In respect of the first case, it is necessary that I briefly address the issue of the timing of the defendant’s plea.  On 2 September 2016, the Court of Appeal revised the practice of affording discounts of sentence for guilty pleas in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.  It was noted by the Court of Appeal that the revised practice would not apply in respect of cases in the Court of First Instance where trial dates had already been fixed.  This case was fixed for trial on 24 August 2016 and therefore the previous practice applies.  Under the previous practice, a defendant would usually be entitled to the normal one third discount when the plea of guilty was entered on the first day of trial: HKSAR v Lo Chi Yip and Another [2000] 3 HKLRD 270, 276C-277J; and HKSAR v Ting Chiu and Another [2003] 3 HKLRD 378, [17], [21] to [23].  Accordingly, the defendant will be given the normal one third discount for his plea of guilty. 

21.The starting point of 7 years and 2 months’ imprisonment will be reduced by one third for the defendant’s guilty plea to 4 years and 9 months’ imprisonment.

22.In respect of the second case, the defendant has entered his plea at the earliest opportunity and is therefore entitled to a one third discount to his sentence.  However, as I have pointed out, this offence occurred whilst the defendant was on bail and this is a serious aggravating factor which warrants an enhancement.  I will increase the starting point to 8 years and 4 months’ imprisonment, which I will reduce by one third for his guilty plea to 5 years and 6 months’ imprisonment. 

23.Taking into account the principle of totality, I will order that 4 years of the sentence on the second case to run consecutively to the sentence of 4 years and 9 months on the first case.  Thus, the defendant will serve a sentence in relation to these two cases of 8 years and 9 months’ imprisonment. 

Mr Bernard Michael Ryan, counsel on fiat, for HKSAR

Mr Freddy Woon Jee Quan, instructed by CMK Lawyers, assigned by Director of Legal Aid, for the defendant