HKSAR v. Chan Ka Cheong

HCCC 267/2019

[2019] HKCFI 2915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 267 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant had pleaded guilty before a magistrate to two charges of trafficking in dangerous drugs and was committed to the Court of First Instance for sentence.

In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drugs involved, background of the defendant and mitigation put forward on his behalf by learned defence counsel.

The facts of the case may be summarized as follows:

The defendant was stopped by police officers on a street in Tuen Mun after he had alighted from a private car. Upon search, four plastic bags each containing similar quantity of ‘Ice’ were found in the inner pocket of his jacket. There was a total of 54.5 grammes of a crystalline solid containing 53.2 grammes of methamphetamine hydrochloride.

Under caution, he stated that the ‘Ice’ seized was for his own consumption. He was then brought back to the car for a search. In a shoulder bag placed at the rear passenger seat, 37 plastic bags each containing a type of dangerous drug were found. The dangerous drugs were 35.02 grammes of a powder containing 22.19 grammes of ketamine and 22.33 grammes of a crystalline solid containing 21.83 grammes of methamphetamine hydrochloride.

Under caution, he said the ‘Ice’ was for his own consumption. In a subsequent interview, he explained the way he consumed ‘Ice’ and said he consumed 5 to 7 grammes of ‘Ice’ each time. He said the substance in the shoulder bag was ‘Ice’. He alighted the car only to buy food. At that time he was driving for leisure. He lived in Sham Shui Po.

I was told that the defendant was born in July 1984, now 35 years of age. He had received education up to Form 5. He started to have conviction when he was at the age of 16. The first offence he committed was robbery for which he was put on probation. He was then twice convicted for possession of dangerous drugs which were in 2001 and 2009. In 2008, he was convicted for smoking dangerous drug. The other offences were mostly driving-related. This is the first time he has been convicted of the offence of trafficking in a dangerous drug.

Learned counsel for the defence, Mr Lam, urged the court to take into account that the defendant had pleaded guilty at the earliest opportunity and that he is now remorseful. He also stressed that this is the first conviction of the defendant for trafficking in dangerous drug. He informed the court that the defendant committed the offence since he needed quick money to satisfy his drug-abuse need. He also asked the court to take into account that the defendant did not resist during arrest, he had no actual gain from this exercise and, save that there were two drugs, no other aggravating factors existed.

Two types of drugs were involved in this case. In the circumstances of the present case, I see no reason to depart from the tariff for each type of the drugs. For Charge 1, there was only one drug which was ‘Ice’. For Charge 2, there was ‘Ice’ and ketamine, each of 20-something grammes.

In this case, two sentencing principles should be followed. The first is in relation to multiple drugs. I have had regard to the guidance provided by the Court of Appeal in cases such as HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Yau Ka Ming, CACC 144/2013, HKSAR v Chan Yuk Leong, CACC 318/2013 and HKSAR v Cheung Wai Man, CACC 258/2017. I will adopt the combined approach and check whether the starting point to be adopted is fair and appropriate by testing it against the absurdity test, the conversion test and the ratio test. The second principle is in relation to totality. In a situation like the present case, in consideration of totality, the total quantity of the drugs should be taken into account.

Tariff for trafficking in ‘Ice’ was set out in AG v Tam Yi Chun [2014] 3 HKLRD 691, in which the Court of Appeal held that if the narcotic content is between 10 to 70 grammes, 7 to 11 years’ imprisonment should be considered. For trafficking in ketamine, according to SJ v Hii Siew Cheng [2009] 1 HKLRD 1, if the narcotic content is 10 to 50 grammes, the sentence to be considered is 4 to 6 years’ imprisonment.

For Charge 1 which concerned 53.2 grammes of ‘Ice’, a starting point of about 9 years 10 months is appropriate, having regard to the quantity. For Charge 2, the quantity of ‘Ice’ 21.83 grammes will attract a starting point of about 7 years and 9 months and the 22.19 grammes of ketamine will attract a starting point of about 4 years 7 months. In applying the conversion test, 22.19 grammes of ketamine may be treated as about 13 grammes of ‘Ice’, thus making a notional total of about 34 grammes of ‘Ice’ which will attract a starting point about 10 months higher than the one applicable to the quantity of the actual ‘Ice’.

I have to have regard to the two possible aggravating features of a wider market and the effect on users of combination of dangerous drugs. In my judgment, a starting point of 8 years and 7 months is appropriate for the quantity of drugs in Charge 2. Having regard to totality, an overall starting point of 11 years and 3 months for the two charges is, in my judgment, appropriate.

The defendant pleaded guilty before a magistrate and for this he is entitled to a one-third discount. Having considered the whole circumstances including what learned counsel mitigated on the defendant’s behalf, I am of the view that one-third is the extent of discount the defendant is entitled to.

Defendant, I sentence you to an imprisonment term of 6½ years for Charge 1 and 5 years and 8 months for Charge 2. Having regard to totality, I order 1 year of the sentence on Charge 2 to run consecutively to that on Charge 1. You are to serve a total sentence of 7½ years for the two charges.