HKSAR v. Chan Wai Yip

DCCC1311/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1311 OF 2009

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to two charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. The two charges refer to the same date but at different locations. The dates are 6 October 2009, and that refers to the ground floor of Yiu Wah House, Yiu Tung Estate, Shau Kei Wan, you unlawfully trafficked in 66.21 grammes of a powder containing 19.39 grammes of ketamine. In respect to the 2nd charge, it refers to a flat in North Point in Kam Ping Street, Pak Fuk Building in which you unlawfully trafficked in 335.93 grammes of a powder containing 112.07 grammes of ketamine.

2.On 6 October, at about 8.17 pm, a police officer saw you walking to and fro outside the ground floor of Yiu Wah House.  He therefore intercepted you.  Upon search, he found four packets of dangerous drugs and a bunch of keys.  He arrested you for trafficking in a dangerous drug, and under caution, you said, “Ah sir, I deliver these K Chai from the base in North Point to a friend.  I sell K Chai to earn some money to support my family.  Give me a chance.”  Those four packets of drugs are the subject of Charge 1.

3.Upon telling the police officer that your base was in North Point, you led them to the premises that is the base, the location in Charge 2.  You opened the door with the bunch of keys that were found upon your person.  A search was conducted in the room and five packets of dangerous drugs were found together with one electronic scale, three spoons and a pile of empty transparent plastic bags.  Again you were further arrested for trafficking in a dangerous drug, and you then told the officer under caution, “I have nothing to say.  Caught red‑handed.  I told you before; I sell K Chai to earn some money to support my family.”  Those five packets of drugs were the subject matter of Charge 2.

4.You were interviewed under caution in a video-recorded interview, and at the time you said you were unemployed.  You sold ketamine to earn some money for settling your credit card debts.  At the time of the interception, you were waiting for one Ah Lung to collect the four packets of drugs.  Ah Lung would pay you $2,000.  You had obtained the drugs from one Ah Kuen.  The electronic scale was used for weighing the ketamine, the spoons were used for repacking the ketamine, and you would be rewarded a sum of $100 from Ah Kuen for selling each ounce of ketamine.

5.You are 37 years of age and have two previous convictions, not related and date back to 1997.  That is some 12 years ago when you were still under 25.  Mr Chan your solicitor, has made very full and detailed mitigation on your behalf, and I have taken into account all that he has had to say.  Mr Chan has said that you had kept out of trouble for some 12 years, and in that time, you had been working steadily in various jobs as a salesman, a driver and interior decoration technician.  

6.However, what led you to commit this offence was, unfortunately, your meeting your now ex-girlfriend in 2009.  She was a big spender and you incurred large debts to credit card companies as a result, and in view of your indebtedness, you borrowed from a loan shark.  The interest escalated and you were unable to repay the loan shark.  Soon in September last year, you were assaulted by someone called Ah Kuen to repay your debts and eventually, you say, forced to sell ketamine and be rewarded $100 per ounce.

7.I might add here that Mr Chan is not at any stance putting forward a defence of duress.  However, you ventured into this trafficking so as to repay your debts, and on the day in question, you had received some 15 ounces of mixture from Ah Kuen and he had told you to sell it.  Those were the four packets, that was 2 and a half ounces, you had with you at the grand floor of Yiu Wan House and the remaining 12 and a half ounces found in your flat.

8.After your arrest your girlfriend left you.  During the time you spent in detention, you have thought over the matter on numerous occasions and are deeply remorseful for what you have done, but you understand that it is inevitable that a custodial sentence will be imposed.

9.Quite correctly, as Mr Chan states, your strongest mitigating factor is of course your early co-operation with the police and your plea of guilty.  The quantity of drugs involved in the two charges totalled 131.46 grammes of ketamine.  In following the guidelines as stated in Secretary for Justice v Hii Siew Cheng CAAR7 of 2006, the tariff falls within the fourth bracket of between 50 to 300 grammes, a sentence of imprisonment of between 6 to 9 years after trial.

10.I of course take the total amount of the drugs into account and bear in mind the principle of totality.  I must, however, also sentence you individually for each separate charge.  I consider a starting point for the total amount of the quantity of drugs to be one of 6 and a half years’ imprisonment after trial.  I give you full credit for your plea of guilty and reduce that term to one of 4 years and 4 months’ imprisonment.  That shall be your total term of imprisonment. 

11.However, in sentencing you individually for the charges you face, on Charge 1, I take a starting point of 4 and a half years’ imprisonment and reduce that to 3 years’ imprisonment in view of your guilty plea.  On Charge 2, I take a starting point of 6 years’ imprisonment and reduce that term to one of 4 years’ imprisonment in view of your guilty plea.  I order 4 months of Charge 1 to run consecutively to Charge 2 and the remainder of the terms to run concurrently.  That makes a term of 4 years and 4 months’ imprisonment.