HKSAR v. Chan Kin Wah
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HCCC 249/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 249 OF 2014 -----------------
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--------------------------------- Transcript of the Audio Recording --------------------------------- COURT: Defendant, you have pleaded guilty to two charges before this court. The 1st charge is a charge of trafficking in a dangerous drug, contrary to section 4(1) and (3) of the Dangerous Drugs Ordinance. The 2nd charge is that of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the same Ordinance. Both offences were committed on the 17th day of January 2014 at your flat at Lung Lok House, Lower Wong Tai Sin No II Estate, Wong Tai Sin, Kowloon. In respect to the trafficking in a dangerous drug, you admitted to unlawfully trafficking in 156.26 grammes of a crystalline solid containing 154.77 grammes of methamphetamine hydrochloride. In respect of the 2nd charge of possession of a dangerous drug, you admitted you had in your possession 88 tablets containing a total of 1.39 grammes of methamphetamine and 7.65 grammes of a powder containing 4.80 grammes of ketamine. On 17 January, at about 9 pm, police officers intercepted you and another male coming out of your flat at Wong Tai Sin, Lung Lok House. Upon searching you, they found two plastic bags of "Ice" in your trousers pocket. Each plastic bag had a green rabbit sticker adhered to it. The total weight of those two packets of "Ice" was 5.81 grammes of a crystalline solid and 5.76 grammes of "Ice". You were arrested and cautioned and you said that the "Ice" was for your own consumption as well as for sale. You also had a sum of $3,200 in cash and keys to your flat in your possession. The police later searched your flat and inside a Prada box in one of the drawers in your bedrooms, the police found more drugs. A further seven packets of "Ice" were found and each of those packets, which were plastic bags, had stuck on it, green rabbit stickers. Another plastic bag containing the 88 tablets containing "Ice" were also found and a further plastic bag containing the ketamine was found. In total, therefore, found on your person and in the premises were 11 bags of drugs, nine of which were of the drug "Ice". That was the two small bags on you and the seven larger bags in the flat. Also found in the flat was an electronic scale and three bundles of resealable plastic bags. In a record of interview, you admitted you bought the "Ice" and you intended to sell the "Ice" by either every 1 gramme or 3 grammes for $300 or $700 respectively. The ketamine and the tablets, which were "Ice", were also for your self-consumption and not for sale. The street value of the "Ice" found was $66,723 and the value of the ketamine was $933. Defendant, you are 54 years of age and married. You have 25 previous convictions upon 17 appearances at court. You had 12 convictions relating to drugs but one of them included a Part I poison. You have three convictions related to trafficking in a dangerous drug. The last conviction was in 1995 for which you were sentenced to 14 years’ imprisonment for trafficking in dangerous drugs. You have six convictions of possession of a dangerous drug. Mr Phillip Ross, you counsel, has mitigated fully and thoroughly on your behalf and he has stated there are some errors in the antecedents statement. He tells me that you are still in contact with your wife and daughter and that you were at the time receiving CSSA at $4,000 per month. Because your wife is a mainlander, she was not allowed to apply for CSSA so, really, the three of you lived on the $4,000 which was partly for your daughter and yourself. In view of the tight financial constraints, you had difficulty in supporting your family and as a result of your dependency and addiction to drugs, although you had tried to stop, you were unable to and thus you resorted to trafficking in dangerous drugs. Mr Ross has mitigated on your behalf that the strongest mitigating factor is your plea of guilty. As to the possession of the tablets and the ketamine, he urges this court not to find that there was a latent risk of trafficking in those drugs as they were in very small amounts. Furthermore, he says that the supplier of the drugs whom you bought the "Ice" from, some of that "Ice" was also for your own consumption. Mr Ross has referred me to the relevant cases for the tariffs for "Ice" and possession of dangerous drugs. He also admits that you are in breach of your suspended sentence, this present offence being committed the following day after you were given your suspended sentence. He also agrees that you are serving a total term of 23 months’ imprisonment, which was the total sentence imposed for seven offences to which you had admitted, between 22 January and 20 June this year, which is shown in items 15, 16 and 17 in your criminal record. The 6-month suspended sentence for 24 months was imposed on 16 January 2004 for the offence of driving whilst disqualified. Mr Ross has not put forward any argument as to why that suspended sentence should not be activated. Defendant, for trafficking in the dangerous drug "Ice", there are clear guidelines laid down in Ching Kwok Hung. You had trafficked in a total of 154.77 grammes of methamphetamine hydrochloride. That amount of "Ice" falls within the third category of between 70 and 300 grammes as laid out in Ching Kwok Hung. Defendant, as a starting point for that quantity of drugs, I would have taken a starting point of 11 years and 3 months’ imprisonment, or 135 months. I accept that part of the drugs had been for your own self-consumption as, clearly, from your record, you are a drug dependant. In those circumstances, I take a lower starting point of 121 months or 10 years and 1 month’s imprisonment. Giving you full credit for your plea of guilty, that term shall be reduced to 6 years and 9 months’ imprisonment. For the 2nd count of possession of a dangerous drug, this would be your sixth similar offence. In those circumstances, I take a starting point of 18 months’ imprisonment had you been convicted after trial. That sentence should be reduced to one of 12 months’ imprisonment, giving you full credit for your plea of guilty. I order that the 12 months’ imprisonment to run concurrent to Charge 1, making a total term of 6 years 9 months’ imprisonment in respect of this case. Defendant, I take into account the principle of totality. I recognise that you are serving a total term of imprisonment of 23 months and I order that 9 months of this term run concurrent to the 23 months you are serving. As I mentioned earlier, you committed this offence the following day after you were sentenced to 6 months’ imprisonment suspended for 2 years. That sentence of 6 months’ imprisonment shall be activated and I order that that 6 months’ imprisonment be served consecutive to this present term of imprisonment in this case. |