HKSAR v. Choi Man-sum

DCCC 649/2020

[2021] HKDC 668

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 649 OF 2020

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Reasons for Sentence

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1.The defendant has pleaded guilty to three charges on this indictment. They are possession of a dangerous drug, trafficking in a dangerous drug, and possession of an imitation firearm.

2.The charges relate to 11 February 2020 where the defendant was intercepted as he walked out of Room 1008 at the Metropark Hotel in Mong Kok.  The ketamine the subject of the 1st charge was found upon him in his jeans pocket.  The total quantity of narcotic is 0.62 gramme of ketamine. 

3.Room 1008 where the defendant was staying was then searched.  The cocaine the subject of the 3rd charge was discovered inside the room in various plastic bags.  Totally, 14.08 grammes of narcotic content of cocaine was found.  Certain items such as spoon and electronic scale were found for the purposes of trafficking in the drugs. 

4.The defendant, after arrest, told police there was a gun inside Room 1009, which would be next door.  That was found to be a suspected imitation firearm, a form of airgun.  A later examination of the airgun showed it was a CO2-powered airgun but it was, in fact, inoperative. 

5.The defendant made two cautioned video-recorded interviews indicating that he had original stayed in Room 1009 of the hotel since 4 January 2020 but had moved to 1008 on about 7 January 2020.  He said that the ketamine found on him was for his own consumption, that the drugs, the cocaine, though was for selling.  He bought those drugs in Yau Ma Tei and he had used the electrical scale and spoon to divide the cocaine into the resealable plastic bags which had also been found. 

6.The defendant said that the airgun had been bought in Mong Kok.  He never intended to use the gun and he kept it inside the safe of Room 1009.  At the time of his arrest, no one knew about the airgun.  The defendant had told the police about it. 

7.The defendant is aged 30.  As far as his personal details of his mitigation are concerned, he was educated up to Form 3 level in Hong Kong, having originally emigrated from China to Hong Kong in 2008.  His family consisted of himself, his mother and his younger sister. 

8.The defendant’s antecedents, which I will describe in a minute, shows that he has been convicted of trafficking in dangerous drugs in the past and was only released from prison in 2019.  Since then, he worked as a garage mechanic earning some 20,000 a month.  He contributed to his family.  Unfortunately, he became unemployed in 2019 when he could no longer be employed as a mechanic because of the effects of the pandemic.  After the defendant had lost his job due to the pandemic crisis, he became involved in trafficking in dangerous drugs. 

9.Defendant says in mitigation that he was a pistol enthusiast and that is why he kept the airgun. He bought it for some $200.  Defendant also says in mitigation that he had been co-operative and tried his best to co-operate with the police investigation, in fact, informing them of the presence of the airgun in the safe next door. 

10.As far as the defendant’s criminal records are concerned, he has a record of offences involving drugs dating back to 2009 when he was sentenced to a drug addiction treatment centre for the offence of possession of a dangerous drug.  In 2017, he was convicted of two offences of trafficking on separate dates.  He received sentences of both 14 months and 2 years 4 months’ imprisonment, part of which was ordered to be run concurrently.  It is that sentence for which the defendant was released in 2019 and following that taking up his employment in a garage. 

11.I have heard and read out a letter from the defendant’s employer at the garage who said he would try to make efforts to re-employ him when he is finish with his prison sentence. 

12.Turning now to the approach to sentence.  In respect of the 1st charge, possession of a dangerous drug, the sentence for possession of ketamine is in the sentencer’s discretion.  In this case, it is relatively small quantity of ketamine, the drugs being possessed purely for the defendant’s own consumption. 

13.As far as the 3rd charge is concerned, the trafficking in a dangerous drug, sentencing in respect of this charge is governed by guideline sentences.  As the potency of cocaine is similar to heroin, the sentencing court is enjoined to follow sentencing guidelines for heroin trafficking found in R v Lau Tak Ming and Other [1990] 2 HKLR 370.  For a quantity of 10 to 50 grammes of heroin, the tariff sentence is between 5 to 8 years’ imprisonment.  It is common ground that in this case without any other aggravating factors on a purely mathematical basis, the sentence will be calculated as a round up, 66 months, 5 years and 6 months. 

14.As far as the sentence for possession of imitation firearm is concerned, the maximum sentence is one of 2 years’ imprisonment, the sentence itself is again at the sentencer’s discretion.  There are no sentencing guidelines for this offence and has to bear in mind that the firearm itself or imitation firearm itself was only a pellet pistol powered by CO2 and was in fact inoperative at the time, that it was bought by the defendant. 

15.Now, bearing in mind the matters put forward in mitigation, I will impose the following sentences and giving defendant credit for his plea of guilty.  As far as the 1st charge is concerned, I will take a starting point of 6 months’ imprisonment, I reduce that to 4 months’ imprisonment for the defendant’s plea of guilty. 

16.As far as the offence of trafficking in dangerous drugs is concerned, the normal starting point for sentence is of course one of 66 months.  However, defendant has recently been convicted of a similar offence, which is an aggravating factor. That being said, starting point that I shall adopt will be one of 69 months’ imprisonment reduced to 46 months’ imprisonment for the defendant plea of guilty. 

17.Finally, the offence of possession of an imitation firearm.  I take into account the nature of this air pistol that was in fact harmless, could only be used for this, at the time the defendant possessed it, for pretending that he had such a weapon. I take a starting point of 9 months’ imprisonment and reduce that to 6 months’ imprisonment for the defendant’s plea of guilty. 

18.I must consider what the overall total sentence should be.  I am going to impose an overall total sentence for these offences at 49 months’ imprisonment.  I shall achieve that by ordering the 1st and 3rd charges to be served concurrently to one another and 3 months of Charge 4, the possession of imitation firearm and 3 months of the sentence to be served consecutively to the 1st and 3rd charges, giving an overall sentence of 49 months’ imprisonment.