HKSAR v. Chan Hiu Shan

DCCC 901/2017

[2018] HKDC 302

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 901 OF 2017

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REASONS FOR SENTENCE

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1.Defendant Chan Hiu Shan pleaded guilty before me to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Admitted facts

2.The facts admitted by Mr Chan may be summarized as follows.

3.On 13 July 2017, Mr Chan was acting furtively outside the Bank of China in Shanghai Street, Mong kok.  He was stopped by a police officer for search.

4.Upon search, the following items were found inside Mr Chan’s mouth:-

(a) 20 white packets (consisting of plastic/paper wrappings) containing a total of 3.57 grammes of a mixture containing 2.93 grammes of heroin hydrochloride; and

(b) 10 red packets (consisting of plastic/paper wrappings) containing a total of 1.26 grammes of a mixture containing 1.03 grammes of heroin hydrochloride.

5.Mr Chan was also found to be in possession of two mobile phones (“MI” and “Samsung”) and cash of $534.80.

6.Under caution, Mr Chan claimed that:-

(a) That’s all the “4 Jai” he had; and

(b) He sold it for the family.

7.Back at the station, under further caution, he said:-

(a) “4 Jai” means “White Powder”; it also means dangerous drugs;

(b) He was approached by a man called “Fat Man” to sell dangerous drugs in exchange for money;

(c) Earlier on the day of arrest, he received a phone call from “Fat Man” and was told to take the “White Powder” at an old building nearby;

(d) He would sell the “White Powder” with white packet at a price of $170 and those with red packet at a price of $130;

(e) He would sell the “White Powder” at Mong Kok;

(f) He would obtain a remuneration of $10 for each packet of “White Powder” sold;

(g) “Fat Man” told him to hide the “White Powder” in his mouth to avoid police search;

(h) He was arrested before he sold any of the “White Powder”;

(i) He did not know the contact of “Fat Man”;

(j) He himself was a drug addict; and

(k) “Fat Man” would contact him through the “MI” mobile phone.

Criminal record

8.The criminal record which is agreed shows that Mr Chan has 15 previous convictions together with one breach of probation order and one breach of suspended sentence all accumulated over 10 occasions of sentencing.  Among them, Mr Chan has one previous similar conviction only for which he was sentenced to 16 months’ imprisonment in September, 2014.

Antecedents

9.The antecedents statement which is agreed shows that Mr Chan is aged 41 (40 at the time of the offence), educated to F4 level; he was unemployed at the time of arrest.  He was last discharged from prison on 15 August 2015.  Mr Chan is married and lived with his wife and [step-]daughter.  Mr Chan has been a CSSA recipient since 2016.  Mr Chan has been a heroin drug addict for over 10 years.

Mitigation

10.Mr Eddie Mui of F Zimmern & Co assigned by the Director of Legal Aid mitigated on behalf of Mr Chan.

11.The following is a summary of the mitigation submissions.

12.Mr Mui relies on the tariffs set down in R v Lau Tak Ming & Ors [1990] 2 HKLR 370 and says that the starting point in the case of Mr Chan is about 3 years.

13.Mr Mui continued to submit that Mr Chan had a car accident in November 2016 and as a result suffered a bone fracture on right knee and leg and the right side of pelvis; therefore he took time to rest with no earning or income and relied on public assistance to support himself and family.  That is why he committed the present offence in order to earn quick money to ease the financial pressure on his family.

14.Mr Mui submitted that Mr Chan pleaded guilty at the earliest opportunity and has been very co-operative with the police and admitted his guilt in the cautioned statements.

15.Mr Mui submitted a letter (in Chinese) written by Mr Chan’s wife. Basically, Mrs Chan pleaded for a lenient sentence for her husband on behalf of both herself and her daughter (aged 18).

16.Mr Mui relied on a Court of First Instance sentencing case namely, HKSAR v Wong Man Kin, HCCC 313/2016, to urge the court not to treat Mr Chan’s one previous similar conviction as an aggravating factor.

Sentence

17.I have considered the mitigation submissions made by Mr Mui.

18.Doubtless, the early plea of guilty is the strongest mitigation.

19.Trafficking in a dangerous drug is a serious offence.

20.For trafficking in heroin hydrochloride, the Court of Appeal has laid down tariff sentences in the case of R v Lau Tak Ming & Ors, supra. For trafficking in up to 10 grammes of the drug, the tariff sentence is 2 to 5 years’ imprisonment.

21.The amount of pure narcotic in this case is slightly less than 4 grammes.

22.I will not treat Mr Chan’s one previous similar conviction as an aggravating factor.

23.Mr Chan, please stand.

24.I shall adopt a starting point of 3 years’ imprisonment in the case of Mr Chan.  I give him full credit for his plea.

25.There are no other mitigating factors of sufficient weight to warrant a further discount.

26.Mr Chan will go to prison for a period of 2 years.