HKSAR v. CHAN CHI HUNG, ANDREW

HCCC 211/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 211 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant, Chan Chi-hung Andrew, has pleaded guilty before me to two charges of possession of dangerous drugs, contrary to section 8(1) and (2) of the Dangerous Drugs Ordinance, Cap 134.

The 1st count involved possession of 0.4 gramme of a mixture containing 0.28 gramme of heroin hydrochloride, and the 2nd count involved possession of a number of drugs in different quantities, namely 16.2 grammes of a crystalline solid and 8.40 grammes of a solid containing 24.4 grammes of methamphetamine hydrochloride; 12.96 grammes of a solid containing 8.54 grammes of cocaine; and 8.43 grammes of a mixture containing 6.09 grammes of heroin hydrochloride.

The particulars of offence of the 1st count were that on 23 January 2015, at Kwai Shing Centre Carpark, 1-3 Wo Yi Hop Road, Kwai Chung, New Territories in Hong Kong, the defendant had in his possession 0.4 gramme of a mixture containing 0.28 gramme of heroin hydrochloride.

The particulars of offence of the 2nd count which has now been admitted were that on the same day in Hong Kong the defendant had in his possession the various quantities of the different drugs mentioned earlier. Thus, the two counts involved a total amount of 6.37 grammes of heroin, and when the quantities of heroin, cocaine and ‘Ice’ are added together they come to 39.31 grammes.

The defendant has also admitted the summary of facts prepared by the prosecution. The summary reads as follows:

“1. On 23 January 2015 at about 2116 hours, police on information intercepted the defendant and a female Zhou Lingyan while they were alighting a private vehicle TB1225 (“the vehicle”) at Kwai Sing Centre Carpark, 1-3 Wo Yi Hop Road, Kwai Chung.

First Count

2.  Upon search of the defendant, a plastic bag of 0.4 gramme of a mixture containing 0.28 gramme of heroin hydrochloride together with two keys for a safe were found inside his right front jeans pocket.  Furthermore, there were also keys for the vehicle, key for Zhou’s home and cash of $10,516.70 inside the defendant’s left front jeans pocket.

3.  A search of the vehicle found another plastic bag containing traces of heroin.

4.  Under caution, the defendant admitted possession of the drug found on him.

5.  A house search was conducted at the defendant’s home which was also at Kwai Sing Centre.  Inside the defendant’s bedroom, the following were seized:

(i) one glass pipe containing liquid with cocaine traces;

(ii) one plastic container with five compartments containing traces of ‘Ice’ and cocaine;

(iii) one electronic scale;

(iv) fifty-eight resealable plastic bags;

(v) three inhaling pipes.

6.  Defendant upon arrest and under caution admitted that the glass pipe and the three inhaling pipes were used by him for smoking ‘Ice’ and the small plastic bags were for keeping the drugs.

Second Count

7.  Zhou then revealed that the defendant had left a safe at her home.  Thus, police went the Zhou’s home at Mong Kok.  During the house search at Zhou’s home, the safe was opened with the keys seized from the defendant. The following were found inside the safe:

(i) a screwed metal box containing: 16.20 grammes of a crystalline solid and 8.40 grammes of a solid containing 24.40 grammes of methamphetamine hydrochloride; 12.96 grammes of a solid containing 8.54 grammes of cocaine; and 8.43 grammes of mixture containing 6.09 grammes of heroin hydrochloride;

(ii) an inhaling device;

(iii) a lighter;

(iv) an electronic scale; and

(v) a screw driver.

8.  Under caution, the defendant admitted possession of the drugs inside the safe for his own consumption.

9.  At the first video-recorded interview, under caution the defendant stated, inter alia: he was a part-time hairstylist and driver on hire earning $20,000 a month.  He used to drive a private car RX6643 which was sold at HK$190,000, 50,000 was kept by him after paying off the hire‑purchase loan. 

Regarding the heroin seized from his jeans, it was for his own consumption by mixing it into cigarettes. He bought 14 grammes of heroin in January 2015 from “Ah Man”. He divided the drug into 14 small packets, the leftover was kept in the safe.

Regarding the bag containing traces of heroin found inside the vehicle, it was the empty packet which he forgot to throw away after finishing the heroin the previous week.

As to the glass pipe and inhaling pipes seized from his home, the defendant confirmed that they belonged to him. The plastic bags were for him to pack his drugs because he took three kinds of drugs, including cocaine, heroin and ‘Ice’. The bigger bags were bought by mistake.

The cash of $10,516.7 seized from him were proceeds from the car sale, gambling, gift from his girlfriend, as January was his birthday month and his earning from work

10.  At the second VRI, under caution the defendant, inter alia, stated as follows.

He was planning to move into Zhou’s home which was rented in January 2015. He admitted that the safe and the electronic scale belonged to him. Since he had moved all his drugs into Zhou’s home, there were only inhaling pipes left in his home in Kwai Sing Centre.

The drugs altogether was worth $20,000 and could last him two months. He brought the drugs in large quantities because he had recently sold his car.

11.  The retail value of all the seized drugs is estimated total $29,748.”

I refer to Cross and Cheung, Sentencing in Hong Kong, 7th edition, pages 625 to 626 regarding sentencing for simple possession of dangerous drugs. The cases of HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405; HKSAR v Wong Kwan Po [2006] 2 HKLRD 177; and HKSAR v Chan Tai Wah [2012] 4 HKLRD 476, they set down the three-step approach for sentencing in possession of drugs, namely an appropriate starting point for the drugs, an enhancement for the latent risk factor of the drugs possessed being made available to others and any mitigating factors to be taken into account.

In a case of HKSAR v Yu Fei [2000] HKCU 682, CACC 152/2000, 6 December 2000 (unreported), which involved 42.6 grammes of ‘Ice’, 18 months’ imprisonment was adopted as the starting point.

In the case of HKSAR v Mok Tso Tik [2001] 1 HKC 261 involving possession of 15.724 grammes of ‘Ice’, the Court of Appeal considered the appropriate starting point to be 18 months’ imprisonment. Regarding the latent risk factor, the court said at page 267, at D and E as follows:

“The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”

The defendant is 41 years old and single. He has six criminal records: three of which related to dangerous drugs, two of possession respectively in 1997 and 2012, and one of trafficking in 2004. I am not taking these convictions to increase his sentence.

His parents and girlfriend are here in court showing support to him. I have also ascertained from the defendant himself if he has quit his addiction to dangerous drugs. He answers in the affirmative. I see hope in his case. Considering all the circumstances of the case and, in particular, the amount of the dangerous drugs involved under each count, I consider that the appropriate starting point for the 1st count is 6 months of imprisonment, whereas for the 2nd count is 18 months’ imprisonment.

There is little risk factor involved regarding the 1st count as the quantity of heroin involved in it cannot reasonably be considered as liable to be distributed by the defendant but for his own consumption.

Considering the circumstances that the quantities of the defendant’s three kinds of dangerous drugs in the 2nd count were locked up in a safe in his girlfriend’s home, which safe could only be opened with the keys seized from him, the risk of the drugs accidentally being made available to others was small.

He has been a drug user himself and he bought the drugs with the money he obtained from recently selling his private car. In those circumstances, the latent risk factor should not be high.

The only serious factor that enhances the risk of availability of the drugs to other users was the variety of the drugs and their relatively larger quantity, and of course there was the previous conviction of trafficking which took place in 2004 which was quite some time ago.

For that main factor of the variety and larger quantities, I would attribute an enhancement of 9 months’ imprisonment.

So, in the whole, the starting point for Count 1 is 6 months’ imprisonment On Count 2, the starting point I adopt is 18 months, and for the latent risk factor, I enhance that sentence by another 9 months.

Counsel for the defendant has said everything that can be said on behalf of the defendant but there is nothing that is substantial in mitigation of sentence. The only substantial and effective mitigation is the defendant’s own plea of guilty and for that I will give him a full one-third discount.

Thus, for the 1st count, his sentence is 4 months’ imprisonment and for the 2nd count, his sentence is 18 months’ imprisonment. I also order that the sentences for the two counts run concurrently.

All in all, the defendant is to go to jail for a period of 18 months, and apparently he has been locked up for quite some time since his arrest on 23 January 2015. He is due to be released at present, I think forthwith.