HKSAR v. Tsang Chun Hin

DCCC 181/2021

[2021] HKDC 1041

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 181 OF 2021

________________________

________________________

________________________

Reasons for Sentence

________________________

1.The defendant has pleaded guilty to four charges on this indictment:

(1)  the 1^st charge is trafficking in dangerous drugs. The particulars relate to quantities of the drug fluorodeschloroketamine and ketamine itself;

(2)  the 2^nd charge relates to possession of dangerous drugs, particulars of which set out the defendant’s possession of quantities of methamphetamine hydrochloride and cocaine and traces of cocaine;

(3)  the 3^rd charge is driving while disqualified, which occurred on 1 August 2020, when the defendant drove a vehicle while he was disqualified; and

(4)  finally, as a result of that, the 4^th charge, where the defendant used the same vehicle without third party insurance.

2.The defendant has agreed the summary of facts which sets out the facts which support all four charges. 

3.The facts are simple.  The charges relate to the defendant’s driving of a vehicle on 1 August 2020 and a following search of the vehicle and the defendant, which disclosed the quantity of drugs.  The defendant was originally seen on 1 August 2020 by police officers alighting from the driver’s seat of the vehicle in question.  A request for identity was made, which disclosed the defendant did not have a driving licence.  A search of the defendant found a car key in his shoulder bag, which then led to a search of the relevant vehicle in the defendant’s presence.

4.During the following search, three batches of drugs were discovered.  The drugs themselves were found to be as follows. There was a quantity of ‘Ice’ in 1.2 grammes and cocaine in 0.14 grammes. Those are quantities charged in the second-charged offence.  It is accepted the defendant is in possession of those drugs for his own consumption.  A quantity of 6.67 grammes of ketamine was also disclosed, and totally 6.55 grammes of the other form of ketamine, which is described as fluorodeschloroketamine, and it is accepted by the defendant in his plea that he was in possession of those drugs for the purposes of trafficking in.  This can also be seen from the fact that the drugs were found in various plastic bags.  Defendant was in possession of an electronic scale and a metal spoon.  Some of the drugs were found in the vehicle - those are the drugs in the first batch and the third batch - and the drugs in the second batch were found on the defendant’s person.

5.Analysis of the location of the drugs has led to the charges that the prosecution proffered.  The charges appear entirely appropriate based on the facts that I see. 

6.The total value of the ketamine and ketamine-derived products is said to be HK$9,318.

7.In respect of the 3^rd and 4^th charges - those are the driving-related offences.  The defendant was disqualified as a result of a court order on 9 October 2017, was disqualified from driving all classes of vehicles for a period of three years.  On 1 August 2020, the defendant was still under a valid disqualification order.  Naturally, the defendant’s driving of the vehicle at that material time was not covered by any third party insurance.

8.In the recorded interview from the defendant, it was established the car in fact that he was driving belonged to his father and he had been driving it prior to the time that he was arrested by police.

9.Turning to the defendant’s antecedents as established in court, defendant is, on his antecedents, it was recorded as being 33 years old.  He was an unemployed, I believe, tattoo artist at the time of his arrest. 

10.The defendant’s criminal records show that he has a number of previous convictions, a total of 11 previous appearances in court, offences relating both to possession of drugs and a number of driving offences.  Relevant convictions are a conviction for trafficking in a dangerous drug in 2008, for which he was sentenced to 40 months’ imprisonment; convictions for possession of dangerous drugs, most recently in 2017, for which he was sentenced to imprisonment; and convictions for both driving while disqualified and driving without third party insurance, convictions for those offences occurring in both 2015 and 2017.  In 2017, the defendant had been sentenced to 4 months’ imprisonment on each of those offences and periods of disqualification.

11.As far as the defendant’s personal circumstances as put forward in mitigation, he is now aged 33.  He is not married but he does have a relationship with a girlfriend who is currently serving a sentence of a Drug Addiction Treatment Centre, but they do have a child to look after.  The defendant tells me that he has recently baptised as a Christian and he considers that that will aid in his rehabilitation. 

12.Other matters raised in mitigation was that the form of ketamine which is described by its initials, those initials being “FDCK”, is similar or of the same nature as ketamine, and so those two drugs should be considered as the same drugs for the purposes of sentencing; the defendant had not been trafficking in a cocktail of drugs.  And, secondly, the defendant says, in respect of the ketamine found in the car, a small quantity would have been used for his own consumption.

13.I turn to the calculation of sentence.  It is appropriate in the case to treat the entire quantity of ketamine and FDCK as one quantity, which would be 13.22 grammes of the narcotic ketamine.  The starting point for sentencing in respect of quantities of ketamine is determined by the guideline authority, Secretary for Justice v Hii Siew Cheng

[2009] 1 HKLRD 1. The quantity of narcotic in Charge 1 nominally falls within the 10 to 50 gramme band of that authority, attracting a sentence of between 4 to 6 years’ imprisonment.

14.There is of course one aggravating factor, which would be the defendant’s previous conviction for trafficking in 2008.  That of course is quite a large number of years ago now, so its impact as an aggravating factor has lessened over time.

15.The mitigating factor, of course, would be the defendant’s own consumption of a small quantity of the drug.  Discounts of up to 10 per cent can be granted where the own consumption is of a not significant quantity of drug.

16.Taking these factors into account, the mitigating factor of the defendant’s own consumption, the evidence contained in the drug assay from the Correctional Services Department shows consumption of ketamine and other drugs.  Also, small quantities of the ketamine were packed separately.  That means that a non-significant amount of the drug made would have been for the defendant’s own consumption. 

17.In my view, in this case, that mitigating factor would reduce the starting point to the lowest figure on the guideline sentence: that of 48 months’ imprisonment. 

18.However, there is the aggravating factor of the defendant’s previous conviction some years ago, which will lead to some enhancement of that figure.  I will take a figure of 3 months by way of enhancement. 

19.This leads to an overall starting point for sentence on the 1^st charge of 51 months’ imprisonment.  After deduction of one-third, that would lead to a sentence of 34 months’ imprisonment on the 1^st charge.

20.The 2^nd charge relates to the defendant’s possession of dangerous drugs, the drugs in question being methamphetamine and cocaine.  Sentences for possession of dangerous drugs can range between 12 to 18 months’ imprisonment for their starting point.  I will take a starting point of 12 months’ imprisonment, reduce that to 8 months’ imprisonment for the defendant’s plea of guilty on the 2^nd charge.

21.As far as the driving offences are concerned, these are both repeat offences.  Although we are towards the end of the disqualification period imposed in 2017, the disqualification was still in effect and these are serious driving offences.  On each of the 3^rd and 4^th charges, I will take a starting point of 9 months’ imprisonment, reduce that to 6 months’ imprisonment for the defendant’s plea of guilty.  There will also be a disqualification of 3 years from driving on each of those charges. 

22.There are a number of sentences of imprisonment and disqualification.  I must determine the overall total for both, having regard to the principles that inform the totality principle in sentencing. These are of course offences that are all committed at the same time on the same day, which could be argued that they are part of one incident.  However, they are largely separate and distinct offences and, to reflect the overall criminality, parts of these sentences must be served both consecutively and concurrently. 

23.I shall order that, in respect of the 2^nd charge, that 2 months of that sentence shall be served consecutively to the 1^st charge.  As far as the 3^rd and 4^th charges are concerned, they should be served concurrently to one another, but 4 months of those sentences should be served consecutively to the 1^st and 2^nd charges. 

24.This leads to an overall total sentence of 40 months’ imprisonment. 

25.I shall also order that the sentences of disqualification be served concurrently to one another but consecutively to any existing disqualification, but, as I understand it, there is no existing disqualification at this point.

(Clarification and confirmation re disqualification period)