HKSAR v. Chan Ho Hang

HCCC 499/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 499 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: The defendant has been convicted on his own plea of the following charges: (i) trafficking in a dangerous drug, namely 25.76 grammes of a crystalline solid containing 25.15 grammes of methamphetamine hydrochloride; and (ii) possession of a dangerous drug, namely 14.62 grammes of a solid containing 10.98 grammes of cocaine.

The Summary of Facts admitted by the defendant provides that at about 01:05 hours on 28 November 2013, police officers spotted a man later known to be the defendant and approached him to conduct inquiries. The defendant immediately fled, but he was caught by the officers. However, the defendant refused to cooperate and backup officers were called.

The defendant was subsequently subdued and found to have in his left hand five packets of re-sealable plastic bags containing drugs, later found to be a total of 25.76 grammes of a crystalline solid containing 25.15 grammes of methamphetamine hydrochloride (Count 1). The defendant was arrested and cautioned.

Upon inquiry, the defendant revealed that he lived at an address in Tai Kwok Tsui, Kowloon, but he refused to let police carry out a house search. He was subsequently taken to the police station and when searched he was found to have two mobile phones and cash in the sum of HK$5,700.70. A search warrant was obtained and at 12:15 hours on the same day, the defendant was taken to his home for a house search. Upon arrival, no one answered the door and force was used to gain entry. The defendant’s girlfriend was found inside the toilet. The defendant’s bedroom was found to be locked and entry was gained by force. Upon search, a bottle marked “Mentos” containing five plastic bags containing drugs were found. The drugs were later found to be a total of 14.62 grammes of a solid containing 10.98 grammes of cocaine (Count 2). Upon return to the Mong Kok Police Station, whilst under caution, the defendant admitted that the drugs were his.

The estimated market retail value of the “ice” drug is HK$14,502 and for the cocaine is HK$20,760.

By way of personal background, the defendant was born in Hong Kong in 1984. He is 29 years of age. He was educated up to Secondary Form 5 level. At the time of his arrest he was working as a salesman at a confectionary store, earning $12,000 a month. He has a mother in her 50s suffering from psychiatric problems. His father passed away in 2003. He has one elder brother and one younger brother. The defendant has no previous criminal conviction.

By way of mitigation, Mr Andrew Leung, counsel for the defendant, submitted on instructions that as much as half of the “ice” drug, the subject matter of Count 1, was intended for self-consumption. The defendant allegedly bought the drug in large quantity to get a very substantial bulk discount. He intended to resell half of it to five of his friends, who were also drug addicts, at a discounted price.

In this regard, I note the guidance given by the Court of Appeal in the case of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, where at page 79B-C, Stuart-Moore VP held as follows:

“Having regard to the dangers of the abuse of this avenue of mitigation, the judge should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the contention.”

In the circumstances of this case, I indicated to Mr Andrew Leung that I am not prepared to accept the defendant’s mitigation without hearing evidence from the defendant. Mr Leung sought a short adjournment to seek instructions, and at the end he told the court that the defendant would not give evidence to make good the assertion that he intended half of the drugs in Count 1 for self-consumption. Accordingly, I am not inclined to give any discount for the defendant’s unproven claim that part of the drugs was for the defendant’s self-use.

On Count 1 the defendant has been convicted on his own plea of trafficking in 25.76 grammes of a crystalline solid containing 25.15 grammes of methamphetamine hydrochloride, commonly known as “ice”.

The Court of Appeal, in the case of Attorney General v Ching Kwok Hung [1991] 2 HKLR 125, has set out the tariffs for trafficking in the “ice” drug. For trafficking in between 10 and 70 grammes of methamphetamine hydrochloride, the proper sentence to be imposed after trial should be 7 to 10 years’ imprisonment.

In my view, following the guidelines in the Ching Kwok Hung case and based on the quantity of the narcotic involved, the proper starting point for sentence on Count 1 in the present case should be 7 years and 9 months’ imprisonment. I shall give the defendant a full one-third discount for his guilty plea. This results in a sentence of 5 years and 2 months’ imprisonment on Count 1.

On Count 2 the defendant has been convicted on his own plea of possessing 14.62 grammes of a solid containing 10.98 grammes of cocaine. For this offence, I propose to take a starting point of 15 months’ imprisonment and to enhance the sentence to take into account the “latent risk” factor by adding a further 6 months, making a starting point of 21 months’ imprisonment in all (see, for example, HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405). This must then be reduced by one third to reflect the defendant’s guilty plea. This results in a sentence of 14 months’ imprisonment on Count 2.

I then have to give anxious consideration to the totality principle in order to arrive at a correct overall sentence. This is particularly so in the present case: for even if the defendant had been convicted of trafficking on Count 2, the quantity of narcotics in the two counts would be combined to achieve a just overall starting point.

Taking all the circumstances into account, in particular, having considered the totality principle, in my view, a correct overall sentence for the two charges for which the defendant has been convicted should be 5 years and 4 months’ imprisonment.

To achieve that result, the defendant is sentenced to 5 years and 2 months’ imprisonment on Count 1. The defendant is sentenced to 14 months’ imprisonment for possessing the dangerous drug the subject matter of Count 2. 12 months of the sentence on Count 2 is to run concurrently with the sentence on Count 1, with two months running consecutively. This results in a total sentence of 5 years and 4 months’ imprisonment.