HKSAR v. Kutarot Chanchai

HCCC 39/2018

[2018] HKCFI 1687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 39 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant, Kutarot Chanchai, faced one count of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He pleaded guilty before me and was convicted of the offence after he admitted to the Summary of Facts.

Summary of Facts

On the 27th of July 2017, the defendant was stopped by the police after he came out of a premises in North Point. After revealing the police identity and showing the defendant a search warrant, the officers entered the defendant’s premises using keys found on the defendant’s person.

The police found the following. Inside a drawer of a wooden cabinet: An electronic scale, a black box containing two plastic bags containing four plastic bags; inside them were 10 grammes of powder containing 4.44 grammes of cocaine.

Inside a compartment of the lower section of the cabinet: A purple sock containing eight transparent resealable plastic bags containing 28.9 grammes of a crystalline solid containing 24.1 grammes of methamphetamine hydrochloride, a plastic box containing sterilised wipe, a candle, lighters, quantity of resealable plastic bags, some straws, a plastic tube and a metal spoon.

Inside another drawer in the cabinet was a bag containing 214 resealable bags.

In another cabinet under the television was a glass pot containing liquid with glass tube and drinking straw. There is another glass pot with tube and drinking straw.

On the bed, there were two glass tubes.

The police also found five mobile phones inside the premises.

The defendant, who is Thai, can speak and understand Punti. Under arrest and caution for trafficking in a dangerous drug, the defendant said in Punti that the things were for his own consumption and he used the pot to smoke ‘Ice’.

The defendant was then taken back to the North Point Police Station. In a video‑recorded interview, the defendant said he worked as a kitchen worker earning 15,000 a month. He intended to use the two inhaling devices to inhale ‘Ice’. He said the four packets of cocaine he bought a month ago for 3,000 to 4,000 dollars for his own consumption. As to the eight packets of ‘Ice’, he bought some of them, and the others were given to him by his friends. He said he would use the lighter and candle to consume dangerous drug. He would use the resealable bag to pack the dangerous drugs and other things.

The street value of the ‘Ice’ was estimated to be $12,832 and the cocaine $10,160.

At the time of the arrest, the defendant has HK$2,961 and 50 Thai baht on him.

The defendant admitted he was in possession of the dangerous drugs and the paraphernalia, including the scale and the resealable plastic bags for the purpose of unlawful trafficking.

Background and Mitigation

According to the antecedent statement, the defendant was born in May 1974 in Thailand. He is therefore 44 years of age. He studied up to Secondary 3 level in Thailand, and it was said that he worked as a janitor in restaurants since 1999, but was unemployed between 2008 and 2015, and he worked again as a janitor in a restaurant from 2016 until his arrest.

Now, the defendant is not a man of clear record. He had six previous convictions. Two for trafficking in a dangerous drug, two of possession of dangerous drug, one of possession of equipment fit for intake of dangerous drug, and one for possession of Part 1 poison.

Mr Nelson Lam, counsel for the defendant, submitted that because the defendant is a Thai, it had taken some time for him to clearly explain to the defendant that sharing dangerous drug with friend still amounts to trafficking in a dangerous drug. Upon receiving such an advice from the counsel, steps have been taken by the defendant to inform the court that he would plead guilty.

Mr Lam originally asked this court to give a discount higher than that of one-quarter. He later asked this Court to give the discount of one-quarter.

Mr Lam also submitted that the defendant was an addict and half of the ‘Ice’ seized in this case was for his own consumption. The defendant was taking 1 gramme of ‘Ice’ per day, that was the original version, but later changed to 0.5 gramme per day at the time of the arrest.

As to why the defendant abused drug, Mr Lam submitted that it was because of the nature of work in the kitchen was hard for the defendant. I was provided with information from the restaurant the defendant worked with. He was working as a cook, earning almost $15,000 per month at the time of the arrest, and he also worked as a cleaner for another company, earning roughly about $5,000 per month. That is about $5,000 a month, yes, including OT.

Now, I will say what I take into consideration when I come to the sentence.

Now, first of all, trafficking in a dangerous drug is a serious offence. On conviction, a person is liable to a fine of $5,000,000 and to life imprisonment. The case involved trafficking in two kinds of drugs, ‘Ice’ and cocaine. So I will first look at these dangerous drugs separately; ‘Ice’ first.

The ‘Ice’ involved here amounts to 24.1 grammes. So, according to the authority of Tam Yi Chun, the appropriate band is 10 to 70 grammes, with a starting point of 7 to 11 years.

Now for the cocaine. The total quantity of cocaine is 4.44 grammes which falls into the category of up to 10 grammes, with a starting point of 2 to 5 years. That is the case of the Attorney General v Pedro Nel Rojas, adopting the guidelines of heroin in the case of The Queen v Lau Tak Ming.

Now, having considered the two different approaches, individual or combined, I’m of the view that a combined approach using the 24.1 grammes of ‘Ice’ as the basis for the starting point and adjusting it upwards to take into account the 4.44 grammes of cocaine would be fairer to the defendant.

The defendant said to the police that some of the dangerous drug ‘Ice’ were given to him by his friends and he bought the cocaine for his own consumption. But during mitigation, it was clearly stated that he did not abuse cocaine and that he consumed 0.5 gramme of ‘Ice’ per day. It was also said that he intended to share half of the ‘Ice’ with others.

Bearing in mind that he now says that the cocaine was not for his own consumption and he had pleaded guilty to the trafficking of both the cocaine and the ‘Ice’, and there were packing equipment in the form of electronic scale and resealable bags found with the two kinds of dangerous drugs, and I do not see any good reason why friends will supply dangerous drug ‘Ice’ to the defendant when the defendant could afford to buy the ‘Ice’ himself, or why the defendant would share half of the ‘Ice’ in his possession with friends when he has to work hard to get money to buy the ‘Ice’.

So for these reasons, even though that was what was asserted by the defendant to the police, I do not accept that he was in possession of the ‘Ice’ for the purpose of trafficking in the form of social sharing.

Now, on the other hand, even if I were to accept that there will be social sharing, the amount of ‘Ice’ was such that it would have been sufficient for a number of persons to consume for multiple times. So see the case of HKSAR v Chan Suet Ping. So there is, of course, no actual evidence of sale. I will proceed on the basis that the defendant was in possession of all the dangerous drugs and the packing equipment in question for the purpose of trafficking which he had admitted without knowing the exact method of trafficking.

So having considered the circumstances of the offence and the quantity of ‘Ice’ involved, I’m of the view that a starting point of 8 years is appropriate. That’s for the ‘Ice’.

The cocaine on its own, in my view, would have attracted a starting point of 3 years. However, the cocaine in question, 4.44 grammes, cannot be said to be a substantial amount. And even if the cocaine were also ‘Ice’ and added that to the quantity of ‘Ice’, I don’t think that is going to make much difference to the starting point of 8 years. So I will adopt 8 years as a starting point for both the ‘Ice’ and the cocaine.

Now, although the defendant asserted half of the dangerous drugs was for his own consumption, but after this court referred to the case of HKSAR v Wong Suet Hau, setting out the factors to be considered by the court when a defendant claimed that part of the drug was for his own consumption, and after this court indicated to the defence that on the Admitted Facts and on the mitigation advanced, this Court will not accept that a substantial amount of the ‘Ice’ was intended for the defendant’s own consumption merely upon the assertion of the defendant without evidence. The defendant indicated through counsel that he did not wish to pursue this matter and he did not wish to give evidence. The court does not have to deal with this matter of any possibility of a substantial amount of the ‘Ice’ was intended for the defendant’s own consumption.

Now, the defendant did not plead guilty at the earliest available opportunity; that is, not at the committal stage. According to the case of Ngo Van Nam, after trial days had been fixed but before the first day of trial, the appropriate discount for an indication of plea of guilty lies between 25 per cent, that is one-quarter, and 20 per cent, that is one-fifth, from the starting point.

Now, I understand the defendant had already indicated he might plead guilty during the case management hearing before Deputy High Court Judge McMahon on the 26 April 2018, and the indication to plead guilty was given about a week later on the 2 May 2018.

That being the case, I will give the defendant a one-quarter discount. So with a starting point of 8 years, a quarter discount would make it 6 years.

So for the offence of trafficking in a dangerous drug, the defendant is sentenced to 6 years’ imprisonment.