HKSAR v. Chan Ming Fai

DCCC 425/2019

[2020] HKDC 558

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 425 OF 2019

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REASONS FOR SENTENCE

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1.Defendant was convicted on his own plea to two charges of trafficking in dangerous drug(s), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Facts

Charge 1

2.Around 2.05 am on 28 December 2018, defendant was intercepted by police while sitting in a driver’s seat of a parked vehicle.

3.After search of the vehicle, a resealable plastic bag containing 12.4 grammes of a solid containing 10.8 grammes of ketamine was found.  The street value of the same was around HK$9,680.

4.Under caution, defendant said that those drugs were ketamine and that he bought them around 4 pm the day before for $700.  He was arrested for possession of a dangerous drug and was later released on police bail.

5.The charge was later amended to trafficking in dangerous drugs.

Charge 2

6.13 days later, at around 9:30am on 10 January 2019, defendant was again intercepted by police while sleeping in the driver’s seat of another parked vehicle. 

7.Again, the vehicle was searched and a semi-transparent plastic bag was found in the front door open compartment next to the driver’s seat.

8.There were five foil packs containing 49 tablets containing 0.5 grammes of nimetazepam; six plastic bags containing four plastic bags of a total of 0.69 gramme of a solid containing 0.5 gramme of cocaine and two plastic bags of total 1.6 gramme of a solid containing 1.33 grammes of ketamine; and one foil pack containing six tablets containing a total of 0.06 grammes of nimetazepam.

9.The packaging of all nimetazepam found were the same and the estimated street value of all these seized drugs on this occasion was about $5,263.

10.Defendant now admits he was unlawfully trafficking in dangerous drugs at all material times.

Criminal record

11.Defendant has six previous convictions with four relating to drugs but they were not similar to the present offences. 

Mitigation

12.Defendant is aged 33, he is single and lived with his father and elder sister in a public housing estate.  He was born in Hong Kong and received education up to Form 4 in Hong Kong and prior to his arrest, he worked as a distilled water transportation worker earning $16,000 per month.

13.Defence counsel submitted that defendant started abusing ketamine at the age of 16 and his first conviction relating to possession of dangerous drugs goes back to September 2002.

14.It was also submitted that the urine test performed on the defendant on 16 January 2019 showed that the defendant had been abusing cocaine.

15.Defence counsel asked this court to afford the defendant some sentencing discount by reason that he is a drug user and he would consume part of the drugs.

16.He submitted that, relying on the case of HKSAR v Wong Kin Kau [2010] HKCA 127 where nimetazepam was equated with ketamine and Ecstasy or MDMA for the purpose of sentencing.  According to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, for drugs between 1 gramme to 10 grammes, and in relation to the 10.8 grammes of ketamine in Charge 1, defence counsel asked this court to use the sentencing starting point at 4 years’ imprisonment.

17.As for Charge 2, defence counsel urged this court, as three types of drugs were involved, would be an aggravating feature in sentencing.  He urged this court to adopt a sentence of 2 years’ imprisonment for 1.33 grammes of ketamine and to consider upward adjustment for the two drugs.

18.Defence counsel worked out a sentencing starting point for the drugs as 32.604 months for absurdity test; 30.835 months if all drugs were converted to ketamine, or 28.16 months if all drugs were converted to cocaine for conversion test; and 30.43 months as sentencing starting point for the ratio test.  He asked this court to adopt 30 months’ imprisonment as a sentencing starting point for Charge 2. 

19.Defence counsel also admitted that there were aggravating features for sentencing in Charge 2, namely that the defendant committed the offence whilst he was on bail, more than one drug was involved in the case, and by reason of defendant’s previous dangerous drugs conviction.

20.Defence counsel submitted the defendant was deeply remorseful and he knew that there was only himself to blame for committing the second charged offence whilst on bail. 

21.It was also said that defendant tried to use cocaine to cure his addiction to ketamine.  He urged this court to consider applying the combined approach and the totality principle in sentencing of this case and to order that part of the sentence for Charge 2 is to run consecutive to the sentence in Charge 1, and the rest of the sentence of Charge 2 is to run concurrent to the sentence in Charge 1.

Discussion

Charge 1

22.For Charge 1, which involved only one drug, this court accepts the submission by defence counsel and would adopt the sentencing starting point submitted by him, ie 4 years.

23.Although the defendant has previous dangerous drugs convictions, they were not similar and this court would not enhance the sentencing starting point.

24.Trafficking in dangerous drugs is a serious offence and in usual circumstances it is well established that personal background and circumstances is not considered valid mitigating factor.

25.Defendant has pleaded guilty and is therefore entitled to full one-third sentencing discount.

26.Accordingly, defendant is sentenced to 32 months’ imprisonment for this offence.

27.As elicited in the case of Wong Suet Hau, defendant is not claiming that he is consuming substantial proportion of the drugs seized for his own consumption.  This court is not going to exercise its discretion to further afford him a sentencing discount.

Charge 2

28.Combined approach was adopted by this court in sentencing of this case, as this offence involved three drugs.  Again, the court adopts the sentencing starting point suggested by defence counsel, ie 30 months’ imprisonment for Charge 2 as the sentencing starting point.

29.The defendant is involved in trafficking in three types of drugs.  This court would therefore enhance the sentencing starting point by 3 months, as this amounts to an aggravating feature being the ability of the trafficker to cater to a wider market[1], bringing the sentencing starting point to 33 months.

30.Further, the defendant committed the second offence only 13 days after he was granted police bail for Charge 1.  This is another aggravating feature for which the sentencing starting point would be further enhanced by 3 months, bringing the sentencing starting point to 36 months’ imprisonment.

31.As said earlier, this court would not enhance further the sentencing starting point by reason of defendant’s previous possession of dangerous drugs conviction.

32.Considering the submissions by defence counsel, this court noted there is no other valid mitigation factor apart from the defendant’s early guilty plea, for which defendant is entitled to full one-third sentencing discount.

33.Accordingly, defendant is sentenced to 24 months’ imprisonment for this charge.

34.The commission by the defendant of Charge 2 offence occurred on two separate days, as opposed to the first charged offence and it involved a further two other drugs.  Commission of the second charged offence obviously adds substantially to the culpability of the defendant. 

35.As said earlier, although the defendant is a drug abuser, he is not claiming a significant proportion of drugs are for his own consumption and therefore there would be no further sentencing discount.

36.This court, after considering the totality principle, considers that total sentence of 44 months is a just and proportionate sentence, having regard to the culpability of the defendant in the whole case.

37.Accordingly, 12 months’ imprisonment of the sentence in Charge 2 is to run consecutive to the sentence for Charge 1 and 12 months’ imprisonment for the sentence in Charge 2 is to run concurrent to the sentence in Charge 1.

38.Defendant is therefore sentenced to a total sentence of 44 months’ imprisonment for the two offences.