HKSAR v. Chan Po Pak

HCCC 120/2022

[2022] HKCFI 3709

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 120OF 2022

________________________

________________________

Before: Hon Campbell‑Moffat J in Court

Date of Hearing: 9 December 2022

Date of Sentence: 9 December 2022

Date of Reasons for Sentence: 9 December 2022

________________________

REASONS FOR SENTENCE

________________________

1.The defendant pleaded guilty to two counts of Trafficking in Dangerous Drugs contrary to s4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 before the Eastern Magistracy on 1 August 2022.

2.Under Count One, the defendant was stopped on 30 November 2020 and found to be in possession of three plastic bags containing 23.2g of heroin hydrochloride, 23.3g of heroin hydrochloride and 26.2g of methamphetamine hydrochloride respectively.

3.The defendant was then taken to the address from which he had just exited, and to which he possessed the keys, for a house search.  During that search 18 bags of heroin hydrochloride were recovered as well as 14 bags of methamphetamine hydrochloride.  In total, 391g of heroin hydrochloride and 186.43g of methamphetamine hydrochloride were recovered. This forms the basis of Count Two.  Scales and unused re-sealable plastic bags were also recovered.

4.Under caution the defendant admitted trafficking in dangerous drugs and receiving between HK$400-500 per ounce for the delivery of the drugs.  When interviewed he explained that he obtained the drugs from another person, stored them at his home address and then delivered them at the direction of that third party.

5.The estimated street value of all of the drugs recovered was HK$780,456.

6.The defendant is 47 years of age, a Hong Kong resident and a transportation worker.  He has a criminal record going back to 1993 mostly for offences of dishonesty.  He has no similar offences of his record.

7.Mr Chui submits that the defendant is remorseful and that he is particularly sorry for his actions as his father and brother and sister have significant illnesses and now lack his support.

8.The sentencing guidelines for heroin can be found in R v Lau Tak-ming [1990] HKLR 370.  I will consider each drug under each count separately and then combined.  Under Count One for trafficking in 46.5g of heroin, the starting point after trial would be 7 years 6 months’ imprisonment and under Count Two for trafficking in 391g of heroin the starting point would be 14 years 9 months.  The total amount of heroin recovered was 437.5g which would attract a starting point after trial of 15 years 11 months.

9.The methamphetamine hydrochloride or ice, falls to be considered under HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  Under Count One for 26.2g of ice the starting point after trial would be 8 years’ imprisonment and under Count Two for 186.3g of ice it would be 13 years.  For the total amount of ice of 212.63g the starting point after trial would be 13 years 6 months.

10.But these are in effect one offence as they arise on the same occasion and from the same source of drugs.

11.If I added those two sentences together that would amount to 29 years 5 months which is far in excess of the defendant’s culpability.  In accordance with HKSAR v Yau Ka Ming CACC 144/2013, I will consider these two counts as if they were one as they are close in time and have a nexus in activity.  It is a cocktail of drugs of which the ice is the more serious.  However, when considering how to approach sentencing where there are different drugs, in this particular case the drugs would attract the same sentence if the court considered them to be all either heroin or all ice as the total amount of drugs recovered was 650.13g and that amount is covered by HKSAR v Abdallah [2009] 2 HKLRD 437.  Following Abdallah, the proper sentence is one of 20 years 3 months in total.  If I adopted the conversion test the range would be between 19 years and 6 months and 20 years and 8 months.  I therefore believe, looking at the circumstances as a whole and the principle of totality, the sentence under Abdallah is appropriate.

12.There are no other aggravating or mitigating factors which would increase or decrease that starting point.

13.The defendant is entitled to a full one third discount for plea at the earliest opportunity, which reduces that sentence to 13 years 6 months’ imprisonment.  That will be apportioned in the following ways:

Count 1 – The final starting point on a conversion basis is one of 9 years 3 months which, after a discount of one third for his plea at the earliest opportunity, is reduced to a sentence of imprisonment of 6 years 2 months, 2 years 5 months of which will run concurrently with Count Two.

Count 2 – The final starting point on a conversion basis is one of 14 years and 8 months, which after discount of one third for his plea at the earliest opportunity is reduced to a sentence of 9 years and 9 months, 7 years 4 months of which will therefore be consecutive to that of Count One, making a sentence of imprisonment of 13 years and 6 months in total.

Ms Grace Chan, SPP of the Department of Justice, for HKSAR

Mr Steve Chui, instructed by Tang & Lee, assigned by the Director of Legal Aid, for the defendant