HKSAR v. Chan Kam Lung

DCCC 455/2021

[2022] HKDC 112

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 455 OF 2021

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REASONS FOR SENTENCE

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1.Mr Chan appeared before me facing a Charge Sheet consisting of two charges namely Charge 1 of Conspiracy to traffic in dangerous drugs, and Charge 2 of Trafficking in dangerous drugs, the latter contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.Mr Chan pleaded not guilty to Charge 1, but guilty to Charge 2.

3.The particulars of Charge 2 are that he, on 23 February 2021, on a private car bearing registration mark WN9412, near Lamppost No FA9853, outside Tin Yiu Plaza, No 2 Tin Wu Road, Tin Shui Wai, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 14.06 grammes of a powder containing 10.41 grammes of ketamine and 9.72 grammes of a solid containing 7.76 grammes of cocaine.

4.Prosecution asked that Charge 1 be left on court file not to be proceeded with without the leave of this court or the Court of Appeal.  I so ordered.

Facts admitted by Mr Chan

5.On 23 February 2021, at 8:15 pm, a patrolling police constable saw Mr Chan acting furtively outside Tin Yiu Plaza.  He approached Mr Chan.  The latter immediately walked to a private car parked nearby.  After Mr Chan unlocked and opened the door of the car, the constable stopped him for enquiries.

6.Upon search of the car, the following items were found inside the arm-rest storage box near the driver’s door:-

(a)  One plastic bag containing 38 plastic bags containing 13.7 grammes of a powder containing 10.1 grammes of ketamine; and

(b)  Seven plastic bags containing a total of 62 plastic bags containing 9.72 grammes of a solid containing 7.76 grammes of cocaine.

7.Mr Chan was arrested and under caution admitted he was rewarded with $2,000 a day for distributing ketamine and cocaine.

8.A further search recovered a plastic bag containing 0.36 gramme of a powder containing 0.31 gramme of ketamine from under the driver’s seat.  Under caution, Mr Chan admitted the ketamine belonged to him.

9.Cash of $11,220 was found in the compartment box in the centre console between the driver’s seat and the front passenger seat.  A total of 3 mobile phones were seized from Mr Chan.

10.During a subsequent cautioned VRI, Mr Chan admitted:-

(a)  All of the dangerous drugs belonged to him;

(b)  He acted alone in distributing the drugs;

(c)  He borrowed the car from a friend who had no knowledge of its intended use; and

(d)  He did not wish his 3 mobile phones be examined by the police.

11.Mr Chan now admits he trafficked in all of the dangerous drugs discovered by the police.

Criminal record

12.Mr Chan has a clear record.

Antecedents

13.Mr Chan is aged 26 (almost 26 at the time of the offence), educated to F3 level, unemployed.  Mr Chan is single and lived with his parents and three children.  His elder son (7)  and daughter (4)  have started living with his ex-girlfriend since his remand.

Mitigation

14.Mr William HM Lam of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chan.  The following is a summary of the mitigation submissions.

15.Mr Chan separated from the mother of his 3 children in 2018.

16.Mr Chan pleaded guilty and is entitled to the full 1/3 discount.

17.Mr Chan has previously been a successful businessman selling skincare products.  However, because of the pandemic, he lost his entire investment which was all of his savings.  He was under financial pressure to support his 3 children two of whom were attending international schools.  He needed also to support his retired parents.

18.Out of desperation, he decided to make quick money by distributing drugs for $2,000.

19.Mr Chan admitted the offence upon arrest and was fully cooperative with the police throughout.

20.Mr Chan urges the court to view his case with sympathy and to further reduce his sentence for his previous good character.

21.Mr Lam submits two mitigation letters written in Chinese by Mr Chan and his mother respectively.  The contents are generally that Mr Chan was the sole bread winner of the family and he was under tremendous financial pressure which led to the commission of the offence; that he is regretful and remorseful and a lenient sentence is wished for so that he may re-unite with his family earlier and turn over a new leaf.

22.For sentencing in a case involving a combination of different drugs, Mr Lam submits the better approach in this case involving drugs of similar potency is the combined approach rather than the individual approach.

23.On calculations, Mr Lam has worked out the following results relying on the sentencing tariffs contained in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 for ketamine; and R v Lau Tak Ming & Ors [1990] 2 HKLR 370 for cocaine:-

(a)  For trafficking in the amount (namely 10.41 g)  of ketamine in this case, the starting point should be about 48 months;

(b)  For trafficking in the amount (namely 7.76 g)  of cocaine in this case, the starting point should be about 52 months;

(c)  The absurdity test (cocaine)  gives a starting point of about 67 months;

(d)  The conversion test (cocaine)  gives 14.42 g of cocaine resulting in a starting point of about 64 months; and

(e)  The ratio test gives a starting point of about 59 months.

Sentence

24.Trafficking in a dangerous drug is a serious offence and is made more serious here because there was a combination of different drugs.  In HKSAR v Chan Yuk Leong, CACC 318/2013, the Court of Appeal re-emphasized the two aggravating factors of which a sentencing court should take note in this type of case, namely (1)  the ability of the trafficker to cater to a wider market; and (2)  the effect on users of combinations of dangerous drugs.  As regards (2), I note that in this case the two types of drugs were not placed together in the same package although the bulk of the ketamine was placed near the cocaine.

25.I agree with the submission that this case calls for the use of the combined approach rather than the individual approach (HKSAR v Cheung Wai Man [2019] 1 HKLRD 817, para 46 considered).

26.In general, I agree to the calculations made by Mr Lam on behalf of Mr Chan.  I would simply add two calculations of my own, namely:-

(a)  The absurdity test (ketamine)  would give a starting point of 53 months; and

(b)  The conversion test (ketamine)  would give about 27 g of ketamine resulting in a starting point of 58.2 months.

27.Bearing in mind all the results of calculations, and the total number of plastic bags of drugs in this case, I am convinced that an overall starting point of 60 months for trafficking in the two types of drug here would not be excessive and that is the figure I adopt for Mr Chan.

28.Mr Chan pleaded guilty and is therefore entitled to the full 1/3 discount.  Previous clear record is not a mitigating factor in this type of offence nor can I see any other grounds for reducing sentence.

(Mr Chan, please stand)

29.Mr Chan shall go to prison for 40 months.