HKSAR v. Poon Chun Keung, Patrick

HCCC 294/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 294 OF 2017

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

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COURT:

The defendant pleaded guilty to one charge of possession of a dangerous drug and one charge of trafficking in a dangerous drug.

He was arrested by the police in an operation and taken back to his residence for a home search. Three bags of ‘Ice’ were found with two drug inhaling devices and an electronic scale. Upon analysis, they were found to be 1.43 grammes of a crystalline solid containing 1.39 grammes of methamphetamine hydrochloride.

Upon caution, the defendant admitted that the ‘Ice’ was for his own consumption. Further search revealed 10 plastic bags of drugs inside a laundry bag. Upon analysis, they were found to be 309.36 grammes of a crystalline solid containing 252.56 grammes of NNDMA and 9.96 grammes of a crystalline solid containing 9.67 grammes of methamphetamine hydrochloride. He said that those drugs seem to be ‘Ice’ and was stored there for a friend “Ah Wah” since about two years ago but Ah Wah never collected the drugs from him.

The estimated value of the ‘Ice’ was in a region of HK$4,000. There is no information on the value of the NNDMA.

By way of mitigation, I am told that the defendant is aged 53, single, a self-employed driver earning around $20,000 a month. He has one previous conviction dated back to 1994 for possession of dangerous drugs for which he was fined.

In sentencing the defendant, I have taken into account the nature of the offence. The different kind of drugs involved. Sentencing authority and tariff as well as mitigation. I have also taken into account his guilty plea at the earliest possible instance.

There are two types of drugs involved in the trafficking charge. The 9.67 grammes of ‘Ice’ falls within the up 10 grammes that is the 3 to 7 years tariff. In relation to the 252.56 grammes of NNDMA, according to the case of Ngan Ka Chun, the starting point for that should be 60 per cent of that for trafficking in the same quantity of ‘Ice’. So in the present case, a starting point for that amount of ‘Ice’ would be around 168 months and 60 per cent of that would be 100 months as starting point for the NNDMA. I then apply the various tests as in the case of Chan Yuk Leong to countercheck.

First, the absurdity test. That is assuming the entire quantity of drugs are all ‘Ice’. That is the entire quantity of 262.23 grammes, the starting point would be around 170 months.

And secondly, the conversion test. Given the starting point for the NNDMA is 100 months which after conversion is equivalent to around 30 grammes of ‘Ice’. So adding 30 grammes to the 9.67 grammes of ‘Ice’, making it a total of 39.67 grammes. The total quantity attracts a starting point of 9 years’ imprisonment.

And thirdly, the ratio test. Align the ratio of the weight of two different kinds of drug and the related ranges of sentence. The NNDMA to ‘Ice’ ratio is around 96 per cent to 4 per cent and that give me a starting point around 105 months but also in the ratio test, the Court of Appeal also said that we have to take into account the aggravating factor that two different kinds of drugs were trafficked in.

Therefore, I consider the conversion test to be fairest of the three approaches and adopt 9 years as the starting point of the 2nd charge of trafficking. He is entitled to a one-third discount and sentenced to 6 years on that 2nd charge.

In relation to the 1st charge, I adopt a 18 months starting point and give him the full one-third discount, sentenced him to 12 months.

I order the sentence on the two charges to run concurrently.