HKSAR v. Choi Jaan Hang, Daniel

DCCC 1192/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1192 OF 2012

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. Particulars of the charge are that the defendant on 5^th August 2012 at the 5^th floor male toilet of Chinachem Cameron Centre in Tsim Sha Tsui, unlawfully trafficked in a 3.22g solid which contained 2.49g of cocaine, 8.56g of a powder containing 3.75g of ketamine and 12 tablets containing 0.15g of nimetazepam.

Facts

2.At about 1:09am on 5^th August 2012, in an anti-dangerous drugs operation conducted by the Police at a bar on 5^th floor of Chinachem Cameron Centre, the defendant was seen rushing hurriedly towards the rear door of the bar. He was intercepted by Police officers and brought to the male toilet for search.

3.Upon search, the following were found from the left pocket of the defendant’s trousers.

· 1 transparent re-sealable plastic bag (P-1) containing 16 transparent re-sealable plastic bags containing dangerous drugs (collectively P-2);

· 1 transparent re-sealable plastic bag (P-3) containing 10 transparent re-sealable plastic bags containing dangerous drugs (collectively P-4); and

· 1 transparent re-sealable plastic bag containing 2 foil packs containing 12 tablets of dangerous drugs 16 transparent re-sealable plastic bags containing dangerous drugs (collectively P-5)

4.The defendant was arrested for the offence of trafficking in dangerous drugs. He had nothing to say under caution at scene. The defendant was then brought to his home for a house search. There, the defendant said under caution that the dangerous drugs found in his possession at the bar were for his own consumption, and that he bought them at the bar earlier that night for $3,000.

5.Upon examination and analysis by the Government Chemist, the 16 plastic bags in P-2 were found to contain a total of 3.22g of a solid which contained 2.49g of cocaine.

6.The 10 plastic bags in P-4 were found to contain 8.56g of a powder which contained 3.75g of ketamine.

7.The 12 tablets in P-5 were found to contain 0.15g of nimetazepam.

8.The estimated street value of the cocaine is HK$3,471, the ketamine is HK$1,078 and the nimetazepam is HK$708. Total value of the dangerous drugs found was HK$5,257.

Previous convictions

9.The defendant has 4 previous convictions for possession of dangerous drugs and 1 for trafficking in dangerous drugs. The trafficking conviction is dated 21^st July 2008. His latest conviction was for possession of dangerous drugs on 3^rd February 2010. He was last discharged from detention on 9^th April 2010.

Mitigation

10.The defendant is 29. He had been working steadily at a pet shop until 15^th July 2012 earning around $10,000 to $15,000 per month. After that he worked as a painting technician. The defendant had been working diligently according to his employers. The defendant however was not earning enough and decided to become a courier in dangerous drugs to earn extra money.

11.At the time of the present offence, the defendant’s father had been suffering from cancer, fortunately his situation has steadied after operation. The defendant realized that he should cease all future illegal activities and treasure the remaining time he has with his family. His mother confirms that the defendant is a smart person, he just lack the wisdom to keep himself on the right path.

Sentencing tariffs

Cocaine

12.Trafficking between 0 to 5g of cocaine would attract a tariff sentence of between 2 to 5 years[1].

Ketamine

13.Trafficking between 1 to 10g of ketamine would attract a tariff sentence of between 2 to 4 years[2].

Nimetazepam

14.I find that the applicable sentencing tariff should be that as adopted in the case of Lai Kwok Hung, therefore the cases of AG v Chan Chi-man [1987] 2 HKLR 221 and R v Sin Shing-cheong [1987] 6 HKLR 1123 apply and for narcotic contents under 500g, sentence is to be as the court sees fit.

Mixed drugs

15.I find that of the 3 drugs that the defendant trafficked, cocaine was of the highest toxicity, followed by ketamine. Regardless of what I said above in relation to sentencing for nimetazepam, I find that the amount of nimetazepam involved in our present case is so small and the number of tablets so few that it should not affect the ultimate sentence.

16.I was referred to the case of HKSAR v Yip Wai Yin, CACC80/2003 on the approach that the court should take when sentencing in cases of cocktail drugs. In our present case, the drugs were separate and not mixed together to increase the potency of the drugs. Nevertheless, I find that a combined approach is the correct approach to take in sentencing in our present case.

17.The defendant’s last conviction for trafficking in dangerous drugs was about 3 years ago. He had already served that sentence and I do not think he should be punished again for that crime.

18.I would have adopted a starting point of 33 months’ imprisonment for trafficking in the 2.49g of cocaine and between 30-33 months’ imprisonment for trafficking in 3.75g of ketamine, making a total of 63 to 66 months’ imprisonment. This is however before the application of the combined approach.

19.In adopting a combined approach, I find that a proper starting point is 42 months’ imprisonment. This would be slightly more than the sentence would be if the cocaine was substituted by ketamine (6.25g = 39 months), but at the same time slightly less than it would be if the ketamine was substituted by cocaine (6.25g = 46.5 months). Bearing in mind all the circumstances of the case and the defendant’s criminal record, I find this an appropriate starting point.

20.Since the defendant pleaded guilty, I will grant him a one-third discount and sentence him to 28 months’ imprisonment.

[1] AG v Rojas [1994] 1 HKC 342

[2] Secretary for Justice v Hii Siew-cheng [2008] 3 HKC 323