The defendant, Chan Chak-wing, pleaded guilty in the court below to two counts of trafficking in a dangerous drug, Charge 1 and 2, and admitted the facts pertaining to the charges.
Charge 1 took place in Yau Ma Tei on 21 August 2020. It concerns a total of 28.65 grammes of methamphetamine hydrochloride.
Charge 2 took place in To Kwa Wan on 19 December 2020. It concerns a total of 26.8 grammes of methamphetamine hydrochloride.
I convict the defendant of Charges 1 and 2 on his own pleas and admission of the Summary of Facts dated 18 January 2022.
The Facts
The Summary of Facts admitted by the defendant reads:
“1st Charge
(1) At about 9.22 pm on 21 August 2020, police officers in uniform, PW1 and PW3, were on patrol in Yau Ma Tei area. They spotted the defendant, who was then wearing a helmet, shopping at the stalls of Temple Street. They found the defendant acting suspiciously and hence kept him under observation. Later, they saw the defendant opening the storage of a motorcycle with number plate MN7900 parked at the junction of Wing Sing Lane and Temple Street, Yau Ma Tei, Kowloon.
(2) PW1 revealed his police identity and approached the defendant for interception. The defendant immediately walked away. PW1 and PW3 grabbed hold of the defendant to stop him from leaving. The defendant struggled. Three of them lost balance and fell onto the ground. PW1 tried to subdue the defendant and gave a verbal warning to him. The defendant kept struggling and screaming. Finally he was subdued and handcuffed. His helmet, mask and car key had already been fallen onto the ground.
(3) A search was conducted on the defendant.
(4) Upon search, a metal can was found from the left front pocket of the defendant’s pair of pants. Inside the metal can, there was one transparent resealable plastic bag containing three transparent resealable plastic bags containing white crystalline solid of a suspected dangerous drug (“DD-1”, “DD-2” and “DD-3”).
(5) The defendant was arrested and cautioned for the offence of trafficking in a dangerous drug.
(6) Under caution, the defendant claimed that the three packets of ‘Ice’ were for his own consumption.
(7) At the time of arrest, the defendant had one mobile phone with two SIM cards and one micro SD card on his person.
(8) After the arrest, the defendant was then sent to hospital for medical treatment as he sustained injuries. He was also granted police bail. He however jumped the police bail and finally located when he was remanded in Lai Chi Kok Reception Centre for the 2nd charge.
(9) Upon the analysis of the Government Chemist, DD-1 to DD-3 were certified as follows:
(a) DD-1: one plastic bag containing 13.5 grammes of a crystalline solid containing 13.5 grammes of methamphetamine hydrochloride.
(b) DD-2: one plastic bag containing 8.65 grammes of a crystalline solid containing 8.65 grammes of methamphetamine hydrochloride.
(c) DD-3: one plastic bag containing 6.50 grammes of a crystalline solid containing 6.50 grammes of methamphetamine hydrochloride.
(10) Therefore, a total of 28.65 grammes of a crystalline solid containing 28.65 grammes of methamphetamine hydrochloride was involved.
(11) The total estimated street value of DD-1, DD-2 and DD-3 was about HK$17,407.
(12) The defendant now admits and accepts that at the material times he unlawfully trafficked in all the dangerous drugs particularised in the 1st charge.
2nd charge
(13) At about 12.40 am on 19 December 2020, a team of police officers in plainclothes were conducting an anti-crime patrol outside No. 14 Hung Kwong Street, To Kwa Wan, Kowloon. They found the defendant acting suspiciously and therefore intercepted him thereat for enquiry and search.
(14) Upon search, one transparent resealable plastic bag containing two packets containing white crystalline solid of a suspected dangerous drug (“DD-4”) was found in the left front inner pocket of the black jacket that the defendant was then wearing. Each of the packets was marked with “X6” on it.
(15) The defendant was then arrested and cautioned for the offence of trafficking in a dangerous drug.
(16) Under caution, the defendant stated that he had just bought the ‘Ice’ from an unknown male in the Prince Edward West Park.
(17) At the time of arrest, the defendant had four mobile phones, cash of HK$80,315.5 and RMB800 on his person.
(18) In the subsequent video-recorded interview, the defendant stated under caution, inter alia, that all the cash found on him belonged to him. The four mobile phones found on him also belonged to him and were for his own use. The cash of HK$80,315.5 was his earnings as he worked as a construction worker with an unstable income, in the range of $20,000 to HK$50,000. He, at a later stage, said that some of the cash was repayments from his friend and fees for the elderly home for his mother whereas some belonged to himself.
(19) Upon analysis of the Government Chemist, DD-4 was certified as two plastic bags containing a total of 27.6 grammes of a crystalline solid containing 26.8 grammes of methamphetamine hydrochloride.
(20) House search was conducted at the residence of the defendant in Mun Ching House, Kai Ching Estate, Ngau Tau Kok. Nothing illegal or suspicious was found therein upon house search.
(21) The estimated street value of DD-4 was HK$17,140.
(22) The defendant now admits and accepts that at the material times he unlawfully trafficked in all the dangerous drugs particularised in the 2nd charge.”
Antecedent and Criminal Record
The defendant was locally born and is now 48 years old. He was educated up to Form 1 level. He was a construction worker at the time of his arrest. He is a divorcee. He has been addicted to ‘Ice’ for over 10 years.
The defendant has a total of 22 criminal convictions recorded against him, including one possession of dangerous drug in 2001, one trafficking in dangerous drug and one possession of equipment fit and intended for smoking, injecting or inhaling dangerous drugs in 2007, one trafficking in dangerous drugs in 2016, one possession of dangerous drug in 2018, one possession of equipment fit and intended for smoking, inhaling or injecting dangerous drug and one possession of Part I Poison in 2018.
For the trafficking in dangerous drug in 2007 (DCCC 602/2007), the defendant was sentenced to 40 months’ imprisonment. For the trafficking in dangerous drug in 2016 (HCCC 8/2015), which was a High Court case, the defendant was sentenced to 58 months’ imprisonment.
Mitigation
Mr So submits in mitigation that a significant amount of the drug in this case would be for the defendant’s own consumption. Mr So asked me to take into consideration the positive urine test result on the day of his arrest, that the defendant had the finance from work to afford his drug consumption. I am also aware that the defendant had been convicted on a number of occasions for possession of dangerous drugs. Mr So says the defendant does not ask for a Newton hearing and will forgo his request for self-consumption reduction if this court decides that a Newton hearing is necessary.
Mr So submits that given the amounts of ‘Ice’ in Charges 1 and 2 and applying the tariffs in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the initial starting points should be 8 years and 3 months for Charge 1 and 8 years and 1 month for Charge 2. With the one-third reduction, the sentence for Charge 1 should be about 66 months’ imprisonment and that for Charge 2 should be 64.5 months’ imprisonment.
Mr So submits that if the court is to allow a further reduction of about 15 per cent for part consumption, the sentence for Charge 1 should be about 57 months’ imprisonment and that for Charge 2 should be 54.5 months’ imprisonment.
Mr So reckons the fact that the defendant committed Charge 2 while he was on bail for Charge 1 is an aggravating factor calling for an enhancement. He draws my attention to the case HKSAR v Wong Yun Fat, CACC 180/2016, and submits that given the amount of drug in Charge 2, a 2 to 3 months enhancement is appropriate.
For the application of the totality principle, Mr So submits that if one takes the amount of ‘Ice’ of the two charges together, it is about 55.45 grammes in total. For 55.45 grammes of ‘Ice’, it calls for a starting point of 10 years and with a one-third reduction for guilty plea, the final sentence would be in the region of 55 to 65 months’ imprisonment.
Consideration
For the defendant’s claim that a substantial amount of the drug in this case would be for his own consumption, I take into consideration the following factors in favour of the defendant:
(1) The defendant claims that he had a steady income and was able to allow him to linger on with the use. This claim, however, is not supported by any evidence.
(2) The positive urine test result on the day of the defendant’s arrest.
(3) The defendant’s previous convictions for possession of dangerous drugs.
On the other hand, there are factors against the defendant’s claim that a substantial part of the dangerous drugs in Charge 1 and 2 were intended for his own consumption:
(1) It would be too much of a coincidence that on both occasions the defendant carried ‘Ice’ both for trafficking and his own consumption.
(2) The defendant lied to the police when he was arrested by the police for Charge 1. He claimed to the police that the three packets of ‘Ice’ were for his own consumption.
(3) After the defendant was arrested for Charge 2, a house search was conducted at his residence and nothing illegal or suspicious was found. In other words, no equipment or paraphernalia fit for smoking ‘Ice’ was found.
All matters taken into consideration, I do not accept the defendant’s assertion that a substantial amount of ‘Ice’ in this case would be for his own consumption.
Aggravating Factors
I find the presence of the following aggravating factors:
(1) The defendant committed Charge 2 while he was on bail for Charge 1.
(2) Not only that, the defendant committed Charge 2 while he was on bail of Charge 1, he jumped the police bail and he was only located by the police when he was remanded in Lai Chi Kok Reception Centre for Charge 2.
(3) The defendant had two previous convictions for trafficking in a dangerous drug, one District Court case and one High Court case.
The Application of the Totality Principle
In applying the totality principle, I bear in mind not only the quantities of the ‘Ice’ for Charge 1 and Charge 2 but also the fact that Charges 1 and 2 were distinct and separate offences committed on two different dates, that is 21 August 2020 and 19 December 2020 and at 2 different locations, that is Yau Ma Tei and To Kwa Wan.
In sentencing the defendant, I follow the six-step approach as explained by the Court of Appeal in HKSAR v Herry Jane Yusuph, CACC 93/2019.
Step 1
Charges 1 and 2 both concern ‘Ice’, hence the tariffs set down by the Court of Appeal in Tam Yi Chun are applicable.
Charge 1 concerns 28.65 grammes of ‘Ice’, the relevant guideline band would be between 7 to 11 years’ imprisonment.
Charge 2 concerns 26.8 grammes of ‘Ice’, the relevant guideline band would be between 7 to 11 years’ imprisonment.
Step 2
On the facts admitted by the defendant, I am satisfied that the defendant played the role of courier in both charges to which the guidelines in Tam Yi Chun apply.
Step 3
Given that Charge 1 involved 28.65 grammes of ‘Ice’ and that the defendant played the role of courier in Charge 1, a notional sentence after trial of 8 years and 3 months is appropriate.
Given that Charge 2 involved 26.8 grammes of ‘Ice’ and that the defendant played the role of courier in Charge 2, a notional sentence after trial of 8 years and 1 month is appropriate.
Step 4
There are aggravating factors present which bear on the eventual starting point to be adopted:
(1) The defendant had twice been convicted of trafficking in a dangerous drug, the past sentences failed to have any deterrent effect on the defendant.
(2) For Charge 2, the defendant committed Charge 2 while he was on bail for Charge 1.
For Charge 1, a higher starting point of 9 years’ imprisonment should be taken.
For Charge 2, a higher starting point of 9 years and 1 month’ imprisonment should be taken.
Step 5
The defendant is entitled to one-third reduction for his timely guilty pleas. There is no other mitigating factor apart from the timely pleas.
With the one-third reduction, the sentence for Charge 1 is reduced to 6 years’ imprisonment. With the one-third reduction, the sentence for Charge 2 is reduced to 6 years and 20 days’ imprisonment.
For the reasons given, on Charge 1, I sentence the defendant to 6 years’ imprisonment. For the reasons given, on Charge 2, I sentence the defendant to 6 years and 20 days’ imprisonment.
Step 6 (The Consideration of Totality)
Charge 1 and Charge 2 were distinct and separate offences, the defendant committed the two offences on different dates and on different locations. In addition to the fact that the defendant committed Charge 2 while on bail for Charge 1, he had jumped the police bail for Charge 1 and committed Charge 2 as a fugitive. The two offences call for partly consecutive sentences. Bearing in mind the totality principle, a total sentence of 9 years’ imprisonment should adequately reflect the overall culpability of Charge 1 and Charge 2.
I order 2 years, 11 months and 10 days of the sentence for Charge 1 shall run consecutively to the sentence for Charge 2, the total sentence is 9 years’ imprisonment.