COURT: Defendant, Chan Chi-yung, faced two counts. Count 1 was
trafficking in dangerous drugs, more than one drug, and
Count 2, trafficking in a dangerous drug and both are
contrary to section 4(1)(a) and (3) of the Dangerous
Drugs Ordinance, Chapter 134. The defendant pleaded
guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
Admitted Facts
At the material time, the defendant rented a room, Room 2606 at the Ibis Hotel in North Point. On 29 May 2021, the manager of the hotel, believing that defendant would not extend the renting of the room upon the defendant’s failure to pay rent, entered the room with a security guard. They found inhaling equipment on the desk. When a safe inside the room was inspected, bags of dangerous drugs and a syringe were found inside. They locked the room and reported the case to the police.
The police arrived to investigate on the same day and the defendant happened to return and was intercepted. On his person, the police found a packet containing what was later confirmed to be 3.93 grammes of a solid containing 3.43 grammes of cocaine inside his trousers’ pocket, that is the 2nd count. The defendant remained silent under arrest and caution.
Inside the room, the police found the following substances which were later confirmed to be dangerous drugs and that is the 1st count:
(1) a total of 391.97 grammes of a crystalline solid containing 367.29 grammes of methamphetamine hydrochloride, I will call it ‘Ice’ later;
(2) a total of 67.4 grammes of a solid containing 58.4 grammes of ketamine;
(3) a total of 3.73 grammes of a mixture containing 2.8 grammes of heroin hydrochloride;
(4) a total of 13.38 grammes of a solid containing 1.42 grammes of MDMA, and;
(5) a total of 0.09 grammes of a solid containing methamphetamine.
Apart from the dangerous drugs, there was an ‘Ice’ bottle, a mouthpiece for the ‘Ice’ bottle and a weighing machine were found on the desk while another weighing machine was found inside a drawer. There was another mouthpiece in front of the bed.
The defendant again remained silent under arrest and caution.
The defendant was brought back to the police station and he became emotional when his request to contact a friend was denied and he bumped his head against the wooden wall, causing a dent. The defendant was escorted to the Eastern Hospital for medical treatment. He was admitted, though no injury was observed by the doctor.
The defendant admitted that he trafficked the dangerous drugs mentioned in the 1st and 2nd count at the material time.
Background and Mitigation
According to the antecedents statement, the defendant was born in 1989, so he is now 34 years old. The defendant completed his Form 5 education and had worked in construction sites and as a cook. Before his arrest, he was living with his parents and a 3-year-old daughter.
The defendant is not a first offender. He had four previous convictions for possession of dangerous drug, for which he was first sentenced to probation order and subsequently to a drug addiction treatment centre. He also had a previous conviction for the unlawful possession of dutiable goods.
Ms Fanny Wong, counsel for the defendant, informed the Court by a letter dated 2 June that the defendant will not raise any issue of self-consumption despite equipment for the consumption of ‘Ice’ were found inside the hotel room.
Ms Wong gave this Court some more information on the defendant. The defendant did odd jobs at construction sites after he left school. Prior to this arrest, he worked as a kitchen assistant, earning between 14,000 to 20,000 per month.
Whilst acknowledging his previous convictions, Ms Wong stressed that the defendant was never sent to a prison before and he does not have any previous record of trafficking in dangerous drugs. She urged this Court not to enhance the starting point on account of the defendant’s criminal record.
After referring to the guideline cases for the trafficking of ‘Ice’, heroin, cocaine and ketamine, and also referring to the three tests, that is absurdity, conversion and ratio tests, Ms Wong invited this Court to adopt the most favourable starting point, that is 16.2 years under the ratio test, in sentencing the defendant. And Ms Wong urged this Court to consider that the defendant was not the mastermind but was at the bottom of a courier chain.
Ms Wong submitted that the defendant pleaded guilty at the earliest opportunity and urged this Court to give him the full one-third discount.
Ms Wong accepted that there were different kinds of dangerous drugs involved in this case that a trafficker may be able to cater to a far wider market than the trafficker in one kind of dangerous drugs may be a factor for enhancement. Nevertheless, she urged this Court that any enhancement should not result in an oppressive and overloaded sentence.
The defendant wrote to this Court expressing his remorse. He explained that a daughter was born to him and his girlfriend and at the time the restaurant he was working at closed down due to COVID. He needed money to support the daughter and borrowed money from financial companies, knowing he had no way of making repayment. It was when he was facing such financial burden that he agreed to rent a hotel room in his own name and store the dangerous drugs inside. He understood the amount of dangerous drugs was large and he had to face a long term of imprisonment. He asked this Court to be lenient so that he could reunite with his family and lead a law-abiding life.
The following is my consideration for the sentence. Trafficking in dangerous drugs is a serious offence. A person convicted of this offence on indictment is liable to a fine of $5 million and to life imprisonment. In the circumstances of the present case where both offences were committed on the same day and the facts were closely linked, in that the dangerous drugs in Count 1 were obviously connected with the dangerous drug in Count 2, the proper approach was to have regard to the total amount of dangerous drugs in both counts to arrive at an overall starting point. There are a number of authorities for this. For instance, the case of Chow Yu Chi, the case of Cheung Kwok Leung and the case of Wong To.
Now, for the trafficking more than one kind of drugs, there are two sentencing approach open to the sentencing judge, an individual approach, and a combined approach.
Before I decide which approach to adopt, I will look at the appropriate starting point for each drug.
First of all the cocaine and heroin. The cocaine and heroin involved here are 6.23 grammes and according to the case of Lau Tak Ming, for up to 10 grammes the starting point is 2 to 5 years.
Now, the ‘Ice’. ‘Ice’ involved here is 367.29 grammes. According to the case of Tam Yi Chun, the quantity falls into the 300 to 600 grammes bracket and the appropriate starting point is one between 15 to 20 years.
And ketamine and MDMA. Now these two drugs involved are 50.82 grammes. Then according to the case of Hii Siew Cheng, trafficking 50 to 300 grammes, the starting point is between 6 to 9 years.
I am of the view that a combined approach is more appropriate in this case. I have asked counsel to provide me with the calculation on the three tests, the conversion, the ratio, and the absurdity test based on the quantity of the drugs involved.
According to the calculation prepared by Ms Wong, which was agreed by Mr Ngai of the prosecution, the result of the three tests are as follows. The absurdity test, that is assuming all the dangerous drugs are ‘Ice’, 433.34 grammes of ‘Ice’ will result in the starting point of 17.2 years. The conversion test, using ‘Ice’ as a base, and converting all others, 377.19 grammes of ‘Ice’ would result in a starting point of 16.3 years. And for the ratio test, the result is 16.2 years.
Apart from the result of these three tests, I also have to consider the role played by the defendant and to take into account the fact that there were five different types of drugs involved here, ‘Ice’, heroin, cocaine, ketamine and MDMA.
Defendant rented a room for the storage of the dangerous drugs and he also acted as a courier. But I accept that he is not a mastermind but he is not merely a courier in delivering the drugs to others because he is also a storekeeper. So bearing in mind the defendant’s role and the fact that multiple kinds of dangerous drugs were involved, I am of the view that a starting point of 17 years is appropriate here. In doing so, I adopted the most favourable starting point of 16.2 years and enhanced it to 17 to take into account his role and the different kinds of dangerous drugs involved. I did not enhance the sentence on account of defendant’s previous convictions.
So with a starting point of 17 years and giving the defendant a full one-third discount, the sentence is one of 11 years and 4 months.
I understand the anguish felt by the defendant in not being able to be with his young daughter and watch her grow. However, the offence he committed is so serious that apart from the full one-third discount for plea, I do not see any basis for further reducing the sentence.
So for the 1st count, 11 years and 4 months’ imprisonment, the 2nd count, the same 11 years and 4 months and both sentences to run concurrently.