HKSAR v. Chan Hei Chun, Joseph

HCCC 193/2017

[2018] HKCFI 61

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 193 OF 2017

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REASONS FOR SENTENCE

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1.On 14 August 2017, the defendant appeared before this Court to be sentenced for the offences of trafficking in a dangerous drug and possession of a dangerous drug to which he had pleaded guilty in the Magistrate’s Court on 12 June 2017. At that hearing, the prosecution and defence requested that the case be adjourned to clarify certain matters which could have a bearing on the mitigation of the defendant. The request was granted. I have been informed that nothing positive has come out of the exercise that would provide mitigation to the defendant.

2.In sentencing the defendant, it needs to be noted that at the earliest opportunity he pleaded guilty to a single count of trafficking in a dangerous drug, namely 12.3 g of a crystalline solid containing 12 g of methamphetamine hydrochloride, commonly known as “Ice”, (Count 1) and a single count of possession of a dangerous drug, namely 0.15 g of a crystalline solid containing 0.14 g of Ice (Count 2).  The estimated street value of the drugs seized at the time of the offence was about $4,358.

3.The facts giving rise to the offences can be briefly summarised as follows.  On 7 August 2016, the defendant had arranged for the collection and delivery of a parcel through a professional delivery service.  The courier was instructed by the defendant to attend a location in Mongkok to pick up a parcel and take it to another location in Sai Wan.  The courier became suspicious and notified the police.  An examination of the parcel by the police revealed that it contained a resealable plastic bag with the drugs as particularised in Count 1.  A police officer accompanied the courier to complete the delivery, while other police officers monitored the location in Sai Wan.  When the courier arrived at the location in Sai Wan, the defendant approached him and collected the parcel.  The police officers sought to apprehend the defendant, but he discarded the parcel and tried to flee.  He was eventually captured and subdued.  A body search of the defendant uncovered a packet of drugs as particularised in Count 2.  The defendant said that these drugs were for his own consumption.

4.In a subsequent video recorded interview, the defendant admitted that he was a broker of drug deals.  He explained that he paired up buyers and sellers of drugs for which he would receive a commission on each transaction.  He conducted these transactions through the messaging application known as “WhatsApp”.  He said that in the afternoon on 7 August 2016, a buyer contacted him and asked him for half an ounce of Ice which was roughly 14 g.  He then negotiated with a drug seller known as “Ah Hei” to sell the quantity of Ice requested to the buyer for $1,500. Ah Hei paid the defendant a commission of $300 by depositing this sum into his bank account.  The defendant had arranged a courier to pick up the drugs from Ah Hei to deliver them to the buyer, but as he was late, he collected the drugs himself.  He said that Ah Hei had sent him a photo of the packet of Ice so he knew what he would have to collect.  He admitted that he had previous dealings with Ah Hei but the buyer was a new customer.  He also admitted that the other smaller packet of Ice was given to him by a previous buyer for his own consumption.  He said that it was an established practice that the buyers would give him a small quantity of drugs as a reward which he would consume.

5.The defendant is 34 years old and single.  He was born in Hong Kong and attained secondary school education.  In 1994, the defendant immigrated to Canada with his family.  He then went on to study in the United Kingdom between 2001 and 2003 where he completed his “A” levels.  After leaving school, he had various jobs in the entertainment industry, and at one stage operated a bar.  More recently, he held the position from 2013 to 2016 as a project manager with a private company.  Thereafter he became unemployed.  He admits that he had been abusing Ice since 2008. 

6.Two letters have been submitted to me as part of his submissions in mitigation.  One is from the defendant in which he describes how his life has been in turmoil due to his drug addiction and the devastating effect that it has had on his family.  He expresses his deep remorse and he is keen to reform and turn a new leaf.  The other is from Pastor Lam Chai Hung of the Christian Prison Pastoral Association Limited, in which he speaks favourably of the defendant, and describes him as a decent young person who is keen to reform himself. 

7.The defendant has a prior conviction for theft for which he was sentenced to 3 weeks’ imprisonment in March 2010.  However, it should be noted that this conviction is regarded as spent under the Rehabilitation of Offender Ordinance, Cap 297.  Accordingly, it will be disregarded for the purpose of sentencing the defendant.

8.This is a sad case.  The defendant is a young man who held a number of responsible positions with a promising future ahead of him.  It appears he has been supported by a caring and loving family.  It also appears he became addicted to Ice and as a consequence his life severely deteriorated to the point he began trading in drugs to sustain his habit.

9.Count 1 concerns a quantity of Ice of 12g. Count 2 is simple possession of a small quantity of Ice which the prosecution has accepted was for the defendant’s own consumption.  The starting point tariff as provided by HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 for the quantity of Ice in Count 1 is 7 years and 1 month’s imprisonment.  The range of sentence for simple possession in the circumstances of this case is 6 to 9 months’ imprisonment.  See HKSAR v Mok Cho Tik [2001] 1 HKC 261.  The defendant has had a serious drug addiction and on his own admission, he had been consuming Ice since 2008. 

10.As the defendant pleaded guilty at the earliest opportunity, he is entitled to a one-third discount to his sentences.  See HKSAR v Ngo Van Nam [2016] 1 HKLRD 1.  Accordingly, the starting points will be reduced on Count 1 from 7 years and 1 month’s imprisonment to 4 years and 8 months’ imprisonment, and on Count 2 from 9 months’ imprisonment to 6 months’ imprisonment. 

11.I bear in mind that if the quantity of drugs in the possession count had been added to the quantity of drugs in the trafficking count, the starting point would have made very little difference to the resultant sentence.  To illustrate this point, on an arithmetic calculation, the quantity of 12 g would result in a starting point of 85.6 months’ imprisonment, and 12.14 g would result in a starting point of 85.72 months’ imprisonment.  For this reason, as well as bearing in mind the totality principle, I will order that the sentences on the two counts be served concurrently.  Accordingly, the defendant will serve a sentence of 4 years and 8 months’ imprisonment.

Mr Gary Leung, SPP (Ag) of Department of Justice, for HKSAR

Mr Chan Pak Kong, instructed by C.K. Charles Ho & Co, assigned by Director of Legal Aid, for the defendant