HKSAR v. Chan Shing Chi

HCCC 21/2020

[2020] HKCFI 1448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 21 OF 2020

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant, Chan Shing-chi, was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. The defendant pleaded guilty before a magistrate and was committed to the Court Of First Instance of the High Court for sentence.

Summary of Facts

The facts admitted by the defendant disclosed that on 18 December 2019 at around 9.15 pm, police officers were conducting an anti-narcotics operation in Shun Lee Estate area in Sau Mau Ping. Then, on 19 December 2019 at around 1.23 am, the defendant was seen acting suspiciously and he was stopped by the police, and the defendant appeared to be nervous and attempted to flee. He was immediately subdued by the police.

Upon body search, a transparent resealable plastic bag containing suspected dangerous drug was found inside the left back pocket of the defendant’s jeans. The defendant was arrested and cautioned, and under caution the defendant said the substance inside the packet was ‘Ice’ and he was helping someone to sell it as he did not have money. He said he needed money for living expenses.

Upon another body search later at around 1.30 am, the defendant took out two more transparent resealable bags containing suspected dangerous drugs hidden underneath his underpants. The defendant was cautioned again. Under caution, the defendant admitted that the two bags contained ‘Ice’ and he was helping someone to sell the ‘Ice’ for a living.

Two mobile phones and a total of HK$30,317 were seized from the defendant.

The defendant took part in a video-recorded interview in which he gave particulars of how he came to be acquainted with someone called Ah Fai and he was recruited by Ah Fai to deliver ‘Ice’ to others. He was given five packets on 18 December by Ah Fai and he delivered two packets to two different persons according to Ah Fai’s instructions prior to his interception by the police. The defendant claimed that of the $30,317 seized from him, 8,000 was the money he obtained from selling the two packets of ‘Ice’ for Ah Fai.

So after analysis, the suspected dangerous drug found inside his jeans pocket was confirmed to be 13.7 grammes of a crystalline solid containing 13.6 grammes of methamphetamine hydrochloride, while the two bags which the defendant hid underneath his underpants contained 27.3 grammes of a crystalline solid containing 27.3 grammes, exactly the same amount, of methamphetamine hydrochloride; in other words, a total of 41 grammes of crystalline solid containing 40.9 grammes of methamphetamine hydrochloride.

The estimated street value of the ‘Ice’ seized was $18,286.

Background and mitigation

The defendant was born in Hong Kong in 1973. He is now 46 years of age. He had a spent conviction 27 years ago. He was educated up to Form 3 level and he had been working as a hair stylist for around 20 years. At the time of the arrest, he was unemployed. The defendant is divorced and he was living with his mother and his 13-year-old daughter before his arrest.

Ms Money Lo, counsel for the defendant, in mitigation submitted that the defendant’s ex-wife divorced him after two years of marriage. He gave up his job managing a hair salon in Shanghai and came back to Hong Kong to look after his daughter. Around the time of the offence, one of the defendant’s friends was diagnosed with cancer, needed money for treatment and offered to sell his hair salon at a much reduced value. The defendant wanted to help his friend and also have an opportunity to own his own business. He therefore made a wrong decision when he was invited to make quick money. The defendant is remorseful and pleaded guilty at the earliest available opportunity.

The defendant regretted what he had done as he not only harmed the society, he had also harmed his family. The defendant had not told his daughter the truth, pretending to her that he is working overseas, though the defendant felt that the daughter is getting suspicious. Since his incarceration, his younger sister came back from the UK to take care of his mother and his daughter. The defendant promised not to commit any offence again and not to let his mother and his daughter down.

The defendant wrote to this court and expressed his deep remorse. He felt ashamed that his aged mother, who could not work properly, is now looking after his daughter for him. The defendant said he was the sole breadwinner of the family and his incarceration would amount to a big blow to the family. He asked to be given a chance to be responsible to both his mother and his daughter.

Ms Lo asked this court to give the defendant a chance, submitting that the offence was out of character in the defendant’s case. She asked me to impose a starting point less than 9 years after referring to the authority of Tam Yi Chun.

Sentence

Offences involving dangerous drug are serious, particularly when the trafficking of dangerous drug is involved. A person convicted on indictment of this offence is liable to a fine of $5 million and to imprisonment for life. In the case of Tam Yi Chun, the Court of Appeal set down guidelines for the trafficking of ‘Ice’. The ‘Ice’ involved in this case was 40.9 grammes which falls under the bracket of between 10 to 70 grammes with a starting point between 7 to 11 years. Having considered the circumstances of this case, in particular, the fact that the defendant was actively selling the ‘Ice’ to customers and the quantity of ‘Ice’ involved, a proper starting point is one of 9 years.

Whilst I appreciate the background of the defendant and the reason why he decided to make quick money, I do not think such is enough for me to adopt a lower starting point. The defendant had a spent conviction which occurred 27 years ago. I will treat the defendant as one with a clear record and will not enhance this starting point. The defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. I am glad to hear that the defendant promised he will not commit any offence again and he will not disappoint his mother and his daughter either. However, apart from the discount for plea, I do not see any other grounds to further reduce the sentence.

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