HKSAR v. CHAN CHUN YU

DCCC 1037/2017

[2018] HKDC 830

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1037 OF 2017

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two counts of trafficking in a dangerous drug. The 1st charge involves 1.37 grammes of a powder containing 0.64 grammes of ketamine and 0.19 grammes of a solid containing 0.18 grammes of cocaine. The 2nd charge involves 15.31 grammes of a powder containing 6.92 grammes of ketamine, 1.29 grammes of a solid containing 1.19 grammes of cocaine, 0.40 grammes of a crystalline solid containing 0.40 grammes of methamphetamine hydrochloride.

2.  The facts of this case are straightforward.  On 22nd August last year, several police officers were on anti-narcotics operation in Yuen Long and spotted the defendant and another male acting suspiciously at a staircase between the ground floor and the 1st floor of a building on Kau Yuk Road in Yuen Long at about 4 pm.  The defendant had his fist closed, and the other male was holding some banknotes.  The police became suspicious and suspected they were watching an actual drugs transaction.

3.  Both males were intercepted.  The other male was holding $250 in one hand, and the defendant was holding three transparent resealable plastic bags in his left hand.  Two bags were later determined to be ketamine, and one bag was cocaine.  Those were the drugs of Charge 1.

4.  The defendant was arrested for trafficking in dangerous drugs, and under caution, he admitted that the drugs were his and he would sell the drugs to his friends if they wanted some.  The estimated street value of those drugs was around $711.

5.  A home search was immediately conducted.  In fact, his home was in that building on the 1st floor.  On a sofa, the police found the following: a small plastic bag which contained six packets of cocaine, a small plastic bag with 15 packets of ketamine, a small plastic bag with nine packets of ketamine, a small plastic bag with one lump of “Ice”.  All four plastic bags were placed on a sofa very close together with a small electronic scale, one mobile phone and a roll of cash $2,480, all loose in the sense that they were not in a wallet.  The estimated street value of all of those drugs was approximately $7,353.  Under caution, the defendant told the police that all the drugs seized in the room on the sofa belonged to him and were for his own consumption. 

6.  Later, a video-recorded interview was conducted, and he gave further details to the police.  He said when he was arrested, he was in the middle of selling one packet of ketamine to that man who was an acquaintance that he had known for a few months, and he was selling it to him for $250.  He had phoned him up and arranged to come and buy it.  All the drugs in the flat he had purchased for $6,000 for his own consumption, and he would either sell some or share some with his friends if they wanted it.  The electronic scale was for measuring up drugs for his friends and was for limiting his own dosage.  The dividing-up of the drugs into small packets was done by him.  He said that he himself was an addict and he would crush the ketamine and snort that.  The cocaine he would put in a cigarette and smoke it, and as for the “Ice”, he would inhale it, using a bottle once or twice a week.  He needed to consume one packet of cocaine and one packet of ketamine a day.  The room itself was rented by a friend for him over a month ago and a month prior to his arrest, and the defendant was the only one with keys.

7.  The defendant is not a man with a clear record. He has two previous convictions.  In February 2009, he was sentenced to 4 months’ imprisonment for possession of dangerous drugs, and in March 2009, he was sentenced to 44 months’ imprisonment for trafficking in dangerous drugs.  The defendant is now 35 years old.  In fact, he was arrested the day after his birthday.  He was born on 21 August 1983.

8.  Mr Yip has done his best to mitigate on the defendant’s behalf.  His best mitigation is his plea of guilty.  I have had several letters from the defence: one from the defendant expressing his remorse, a letter from the defendant’s mother explaining their family background, her own health issues, and asking for leniency on behalf of the defendant.  I have had a letter from a social worker and two letters from church leaders that the defendant attends with his mother, explaining how they know the defendant and what they have come to know of the defendant.  

9.  The defendant was brought up in a single-parent family.  His father now lives in China.  His mother suffers from depression which at times can be very serious, which means she needs the defendant’s care and support.  The defendant himself has been divorced once which has contributed to his drug use because of his unhappiness in that marriage.  He now has a steady girlfriend, and they hope to marry in the future.  He has intentions of completing a vocational course even whilst he serves his term of imprisonment in order to turn over a new leaf.

10.  I have also been told from several sources that when he was younger, he was easily led astray and influenced by bad peers which was one of the reasons he has become involved with drugs.  Mr Yip has prepared written mitigation which includes details of the defendant’s employment just before his arrest.  He was a casual warehouse worker earning $6,000 a month which he could supplement working as a cleaner and at times could earn up to nine to ten thousand dollars per month.

11.  Yet, I have also had a letter from an employer from an air-conditioning company.  That states he had employed the defendant from 2015 to July 2017 on a salary of $12,500 a month.  This is somewhat contradictory and a discrepancy in the mitigation.  Mr Yip was clearly given instructions earlier and then given mitigation letters at the door of the court.  He later says that the defendant did have this job, and in summer months, he could earn this much but less in the winter months.

12.  Trafficking in dangerous drugs is a very serious offence, and this is not the defendant’s first conviction for this offence.  I also take into account the seizure of three different types of dangerous drugs at the same time which is in itself an aggravating factor.  This leads to the ability of the defendant to cater to a wider market.  In fact, when he was arrested downstairs from his flat, he was holding three packets in his hand, two packets of ketamine and one packet of cocaine. 

13.  Another aggravating factor is the greater harm of a combination of, for example, “Ice” and ketamine to an abuser than either drug being taken alone.  The defence submission that the defendant may share some dangerous drugs with friends, not necessarily only sell dangerous drugs, carries little weight in mitigation.  The Court of Appeal has said time and time again that traffickers with no commercial motive cannot expect lesser sentences.  

14.  Here, there are two charges but they are so closely linked together and the dangerous drugs of both charges are obviously connected, the dangerous drugs of Charge 1 were taken from the dangerous drugs of Charge 2, a proper approach would be to have regard to the total amount of the dangerous drugs in both charges and arrive at an overall appropriate starting point and sentence the defendant as if he had only been charged with one offence only.  Therefore, the total amount of ketamine for both charges is 7.56 grammes, the total amount of cocaine for both charges is 1.36 grammes, and the total amount of all three narcotics is 9.33 grammes.

15.  If I was looking at the starting point of individual drugs here, I would have to look to the Court of Appeal for guidelines.  The Court of Appeal has said that the sentencing guidelines for heroin are applicable to cocaine.  The guidelines come from R v Lau Tak Ming & Others [1990] 2 HKLR 370.  For a quantity of dangerous drugs up to 10 grammes, a 2-to-5-year starting point is appropriate. Therefore, here 1.36 grammes means a starting point of 24 months would be appropriate.

16.  The Court of Appeal has said that for sentencing ketamine, according to the Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323, where over 1 gramme to 10 grammes of ketamine is trafficked, a 2-to-4-year term of imprisonment would be appropriate.  Therefore, with a quantity of 7.56 grammes of ketamine, a starting point of 42 months would be appropriate.

17.  For sentencing tariff for “Ice”, I refer myself to HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 where the Court of Appeal has said where up to 10 grammes of “Ice” is trafficked, a 3‑to‑7‑year term of imprisonment would be appropriate.  Here, 0.4 grammes of “Ice” would attract a starting point of 24 months’ imprisonment. 

18.  Where there is a cocktail of drugs as in this case, that is more than one type of drug trafficked, the Court of Appeal has set out two different approaches to finding an appropriate starting point: the combined approach and the individual approach, and I have referred myself to the authority of HKSAR v Yip Wai Yin [2004] 3 HKC 367.  I find the combined approach more appropriate, and Mr Yip has urged me to consider this approach.  I quote from that authority at paragraph 9(3):

“The methodology of this ‘combined’ approach is first to calculate the applicable sentence for the more or most serious drug, and then adjust the sentence upwards to take into account significant quantities of the other (less serious) drugs:- see HKSAR v Cheung Kwok Leung Lowence, unreported, CACC 539 of 2002. By ‘the more or most serious drug’, we are not referring to quantities but to seriousness in terms of the potency of the drug. Thus, for example, where significant quantities of ‘Ice’ and ketamine are found in a cocktail, the more serious drug is taken to be ‘Ice’ even in terms of quantity, it may be less than the ketamine.”

19.  In this case, Mr Yip has submitted “Ice” is the most potent drug of the three, and there is 0.4 grammes of “Ice”, and according to tariff, I should consider a 3-year starting point.  He suggests an enhancement of 6 months to take into account 7.56 grammes of ketamine and 1.37 grammes of cocaine.    

20.  I agree “Ice” is the most potent of the three drugs but there is only 0.4 grammes of it here, and it attracts the lower starting point of the tariffs for all three drugs.  There is 7.56 grammes of ketamine out of a total 9.33 grammes of narcotics.  Not only is it the bulk of the narcotics seized.  It attracts a higher starting point than the “Ice”.  It attracts a starting point of 3 years and 6 months.

21.  Mr Yip did submit I must use the tariff for “Ice” but without great conviction.  I quote from HKSAR v Wan Lau Mei CACC 389 of 2013 to support my approach of taking the tariff for ketamine instead of “Ice”.  Paragraph 36:

“Under the combined approach, it is necessary for the judge to identify the drug sentencing tariff that he will employ. This is done by identifying the drug which makes up the bulk of the narcotic seized or, where the drugs are of significantly differing potency, the judge may use the tariff of the more potent drug if it makes up a significant proportion of the total quantity of drugs being trafficked.”

22.  I have taken into account the facts of this case, mitigation put forward on behalf of the defendant, including the letters put forward in mitigation.  I will rely on that authority I have just quoted from as well as it being logical to take the starting point for the ketamine here which is higher than the “Ice” and not take the starting point for “Ice” even though the “Ice” is the more potent drug.  

23.  I take the 42 months’ starting point for trafficking 7.56 grammes of ketamine.  I will enhance that by 9 months to take into account the quantity of cocaine and the quantity of “Ice”.  Therefore, the starting point becomes one of 51 months.

24.  I now consider the defence submission of self-consumption.  The defendant claims that he is a drug addict and that part of or a significant portion of the dangerous drugs was for his self-consumption.  The prosecution do not agree or accept that mitigation.  The prosecution says that there is no other evidence to indicate that this is true other than the defendant’s own assertion that part of it was for himself. 

25.  The defence submission is based on the following to support this mitigation.  It includes his past record that he has a previous for possession of dangerous drugs in 2009.  He has had two previous stints in drug rehabilitation.  That is in 2012 and 2015, voluntary drug rehabilitation. The latter stint is supported by a letter from the Ling Oi Centre where it describes a one-week residential drug rehabilitation course.  There is also his confession to the police that he bought the dangerous drugs for $6,000 for his own consumption and would sell or share some with his friends.  It includes a description of how he takes drugs and how much he needs per day.

26.  I have considered the authority of HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69.  The Court of Appeal has said that if the sentencing court accepts a significant portion of the dangerous drugs is for self-consumption, then the court can adjust the sentence or the starting point to reflect the fact that not all is for trafficking.  The same authority warns of the dangers of the abuse of this avenue of mitigation and says courts should look with the greatest of care at all the surrounding circumstances in order to decide whether to accept the contention or not.  That authority helpfully sets out factors relevant to determine whether to accept it or not, and I have taken them all into consideration.

27.  After consideration, I do not accept the mitigation nor believe the drugs were bought for his own consumption for the following reasons.  I have taken into account the value of all the drugs in total for both charges is over $8,000.  When I take into account what I have heard in mitigation about his income, I doubt he can afford to feed himself, transport himself to and from work, support his mother and buy that much drugs in one go especially when in mitigation, there seems to be a discrepancy in exactly how much he earned per month. 

28.  I have also taken into account how the drugs were packed into very small packages and then separated into transparent plastic bags according to the types of drugs.  Then they were all placed together on the sofa.  There was no other paraphernalia found in the flat such as loose plastic bags.  These had been packed as if ready to be sold from that flat.  There was also no paraphernalia in that flat for smoking, inhaling “Ice”.  If the defendant smoked “Ice” as he claimed, there would be “Ice” bottles found and seized.  There was nothing there to consume dangerous drugs.  

29.  The money found in the apartment was with the drugs.  The defendant claims it was his own, but it was not in a wallet.  It was not in his trouser pocket.  It was loose but folded together and placed with the drugs on the sofa.  I am sure it was proceeds of drugs’ transactions. This apartment was not in the defendant’s name but rented for him.  The drugs’ transaction was done downstairs.  If that male was a friend, he would have come upstairs to get the dangerous drugs or share the dangerous drugs to avoid the risk of being seen or getting caught, which is exactly what happened.

30.  Lastly, even if the defendant is an addict, that fact per se does not mean I have to accept that a significant portion of these drugs were for his own consumption.

31.  On these facts, I am not convinced and I do not accept this mitigation.  There will be no further discount other than the one-third discount for the defendant’s plea of guilty.

32.  Defendant, please stand up.  Because you have pleaded guilty, you are entitled to that discount.  Therefore, after that discount is applied to the starting point of 51 months or 4 years and 3 months, you are therefore sentenced to: Charge 1, 2 years and 10 months; Charge 2, 2 years and 10 months.  Both will be served concurrently.  That is a total sentence of 2 years and 10 months.  Do you understand?

DEFENDANT: Understood.