HKSAR v. Chan Yuen Man

HCCC 410/2017

[2018] HKCFI 632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 410 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 have pleaded guilty to a charge of trafficking in a dangerous drug at the Eastern Magistracy, before a magistrate, on 6 November 2017.

Upon your plea of guilty and admission of the facts, you were committed to the Court of First Instance for sentence. Through your plea of guilty, you admitted that on 4 April 2017, at On Hing Street, Yuen Long, New Territories, in Hong Kong, you unlawfully trafficked in 55.87 grammes of a crystalline solid containing 53.19 grammes of methamphetamine hydrochloride.

On 4 April, at about 2042 hours, police officers saw you together with another male named Lui, acting furtively on On Hing Street in Yuen Long. In particular, you kept looking around and pressed against your trousers pocket. The police officers then approached you and Lui. A search of Lui produced nothing suspicious. However, found from your left front trousers pocket was a tissue paper wrapping a transparent resealable plastic bag containing 27.3 grammes of a crystalline solid containing 26.0 grammes of methamphetamine hydrochloride.

You were arrested and under caution, you stated that “the stuff are for my own consumption”. You were then taken back to your residence in Tin Shui Wai, however, nothing suspicious was found.

Thereafter, you were taken to the Yuen Long Police Station, at about 4.26 am that day, upon search by a woman police constable, the remaining 28.57 grammes of a crystalline solid containing 27.19 grammes of methamphetamine hydrochloride were found inside your underpants. They were as follows. There was a paper tissue wrapping a transparent resealable bag containing 27.4 grammes of a crystalline solid containing 26.1 grammes of methamphetamine hydrochloride. There was also one transparent resealable plastic bag containing 0.03 grammes of a crystalline solid containing methamphetamine hydrochloride, another transparent resealable plastic bag, containing traces of crystalline solid containing methamphetamine, another plastic bag containing 0.65 grammes of a crystalline solid containing 0.62 grammes of methamphetamine hydrochloride, and a further, a fourth plastic bag containing 0.49 grammes of a crystalline solid containing 0.47 grammes of methamphetamine hydrochloride. Also found were 22 transparent resealable plastic bags.

Under further arrest and caution, you said, “Sorry Madam, I did not cheat you intentionally”.

In a video-recorded interview, you stated, amongst other things, that you were unemployed. You were, at that time, waiting to deliver “Ice” to someone at about 8 pm, you obtained the “Ice” from a friend in Tin Shui Wai at a loan of $3,800, after getting the “Ice”, you went to your boyfriend Lui’s home, and later, you went to On Hing Street together by taxi.

You said that you kept some “Ice” for your own consumption, and you admitted that the drugs seized in your underpants was for selling to others, as well as for your own consumption. You said that the four smaller plastic bags of “Ice” were for selling at $200 to $300 each.

The total estimated street value of the dangerous drugs seized in April 2017 was about $15,979.

Defendant, you are 29 years of age, and have a clear record. You have been educated up to Form 4, and were unemployed at the time of arrest.

Mr Harrison Cheung, your counsel, has said that you are, in fact, married to a man in PRC, but not single as stated in the antecedents.

Mr Cheung has submitted that a least 50 per cent of the portion of the drugs was for your own consumption. He relied on the fact that the drugs that were found were found in two separate places on your body. You do not dispute that the drugs found inside your trousers pocket were for selling to others. He however says that a significant proportion of the drugs found in your underpants were for your own consumption. That is approximately 27.4 grammes.

He relies upon the fact that you have been a drug dependent now for more than 10 years. This, he says, is supported by a Hospital Authority psychiatric report which has been submitted to me dated 29 January 2014.

He further relies upon a sentence in the report, which says that you used “Ice” almost once in alternate days, and you did not regularly pay for them, but usually paid for them in one go, for example, $10,000, once every few months. He relies upon those matters to support his submission that you would buy drugs in bulk, and in this instance, the drugs, at least, or a significant proportion of them, or 50 per cent, were for your own consumption.

He further relies upon the fact that two smaller packets of drugs found in your underpants had a very small trace of, or amount of “Ice”. He says those were because you had consumed the “Ice” at your boyfriend’s house.

I do not doubt, and I am satisfied that you are a drug-dependent. However, as I indicated to Mr Cheung, I do not accept that a significant proportion of these drugs that were found in your possession were for your own consumption. Upon informing Mr Cheung of this fact, Mr Cheung informed me that you would not require a Newton hearing.

I did not accept that a significant proportion were for your own consumption, as, firstly, the psychiatric report relied upon is now some three years ago, it is hearsay, and is irrelevant to the facts as I have before me today. They are, firstly, that you are unemployed. Even though Mr Cheung says that you are supported by your boyfriend and parents, I do not accept that you would have the means to purchase this amount of drugs.

Secondly, in the video-recorded interview, you state that you obtained the “Ice” from a friend in Tin Shui Wai, for $3,800. That, again, is a significantly lower amount than the estimated street value of $15,979.

And thirdly, in the same video-recorded interview, you said that the “Ice” that was hidden in your underpants was for selling to others, as well as for your own consumption.

From this background, I reject that the significant proportion was for your own consumption.

Mr Cheung has referred me to the correct authority of Tam Yi Chun in sentencing you for trafficking in the dangerous drug “Ice”.

The quantity to which you were trafficking in was 53.19 grammes. Had you been convicted after trial, an appropriate starting point would be one of 9 years and 9 months’ imprisonment. You pleaded guilty at the first opportunity, at the committal stage of the proceedings, and in the circumstances, you deserve a full one-third discount. In the circumstances, you shall be sentenced to 6 years and 6 months’ imprisonment.