HKSAR v. Chan Siu Kuen

HCCC 277/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 277 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

In this matter on 14 August of this year, the defendant pleaded guilty at the Eastern Magistrates’ Court to one charge of trafficking in dangerous drugs, contrary to Section 4(1)(a) and 3 of the Dangerous Drugs Ordinance, Cap.134.

The particulars of the offence allege that he, on 26 October 2016, at the junction of Yeung Choi Street Sai Yeung Choi Street South and Nelson Road, Mong Kok, in Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 47.7 grammes of a solid containing 40 grammes of cocaine and 27.1 grammes of a powder containing 13.8 grammes of ketamine. A Summary of Facts supporting the prosecution case was read in open court and confirmed by the defendant to be correct. The defendant has today confirmed his plea of guilty and the accuracy of that Summary of Facts.

The prosecution case, inter alia, was as follows: at about 10 pm, on 26 October 2016, near Sai Yeung Choi Street at the junction of Nelson Street, in Mong Kok, Kowloon, the defendant was seen at the entrance of a commercial centre. The police officers who had first noticed him approached him and the defendant then began to walk along Sai Yeung Choi Street. He was intercepted near the intersection of Nelson Street.

At the time he was carrying a plastic bag. Inside that the officers found a white paper tissue wrapped in transparent plastic tape. Inside the white paper tissue were three re‑sealable transparent plastic bags. The officer suspected that those bags contained dangerous drugs and those suspicions proved to be correct. Upon subsequent analysis it was determined that the applicant was in possession of 47.7 grammes of a solid containing 40 grammes of cocaine in two of the plastic bags and 27.1 grammes of a powder containing 13.8 grammes of ketamine in the other plastic bag.

The defendant was arrested and in a subsequent video‑recorded interview admitted that he was unemployed and that he resided in the mainland. He has today, by reason of the Admitted Facts and his plea of guilty acknowledged that he was in possession of those dangerous drugs for the purposes of trafficking.

The cocaine had a retail value of almost $50,000 and the ketamine almost $7,500.

An antecedents statement was provided by the prosecution at the time of the plea of guilty. That antecedents statement indicates that the defendant is aged 52, had received primary education up to Grade 6 level. He told the officer who was taking the statement that he was unemployed at the time of his arrest. He was asked about his health condition and told the officer that he used to smoke dangerous drugs but had weaned himself off that.

On behalf of the defendant Ms Wong has prepared a helpful written submission in support of her mitigation. In that written submission she confirmed some of the matters that I referred to in the antecedents statement and she refers to the fact that whilst he has previous convictions dating back to 1979, his last conviction was in 1998. One of those convictions is for the possession of dangerous drugs. At no time when sentenced in respect of his past convictions has he been sentenced to an immediate term of imprisonment.

I am advised, and this is contained in the written submissions as well, that the defendant is married and has two children living in the mainland. It was to provide financial assistance for the children’s education that he is said to have committed this offence. Not only was it suggested that it was to provide assistance in respect of their education but also to enable them in the fullness of time to come to live in Hong Kong.

Ms Wong has submitted to me, both in written submission and orally, that I should make an allowance in respect of the quantity of ketamine for self-consumption by the defendant. Whilst that is of course permissible and the Court of Appeal has indicated to that effect, I am not inclined to do so in the present case. When the antecedents statement was taken from the defendant in July this year, he indicated to the officer concerned that he, whilst he had in the past consumed dangerous drugs by way of smoking, he had weaned himself off that habit.

Ms Wong has confirmed that at no time during the course of his interviews with the police officers in respect of this matter did he suggest that any of the drugs were for his consumption. Leaving aside what the defendant has said to the officer in the antecedents statement, it is impossible from any of the material before me to quantify what, if any amount, would have been used for his own consumption.

Turning now to the appropriate starting point for sentence, again, I refer to the written submission prepared by Ms Wong on behalf of the defendant. She has helpfully pointed out that in cases of this nature the Court of Appeal has indicated that the combined approach to sentencing is often the most preferable. In that regard she refers to the unreported decision of the Court of Appeal in HKSAR v Yip Wai Yin & Others CACC 80/2003. As I have indicated, in my opinion the combined approach to the starting point for sentencing is entirely proper in this case.

Looking at the individual drugs concerned, the starting point for sentence for this quantity of cocaine would, in the normal course of events, be one of 7 years and 3 months rounded out. The accepted starting point for sentencing for this quantity of ketamine would be of the order of 4 years. If all of the drugs were cocaine the appropriate starting point would be one of 8 years or thereabouts. If all of the drugs were ketamine the starting point would be in the order of 6 years’ imprisonment or thereabouts. Looking at the appropriate combined starting point, I am satisfied that a starting point of 7 years and 9 months after trial would be correct.

In the event, given that the defendant has pleaded guilty at the earliest opportunity he is entitled to a full one-third discount from that starting point. I then have to consider whether there are any other mitigating factors which would increase the discount given the defendant. I have already indicated that the starting point will not be adjusted by reason of alleged self-consumption. There is nothing, to my mind, in the circumstances of the defendant or the circumstances of the offence which would permit me to increase the amount of discount beyond the one-third that I have already indicated. I have reached that conclusion, insofar as the starting point is concerned, by looking both at the suggested absurdity test and conversion tests together with the observations of the Court of Appeal in Yip Wai Yin.

(Discussion re discount for starting point for sentence)

The sentence will be then one of 5 years and 2 months’ imprisonment.