HKSAR v. CHOI CHI PANG

HCCC 130/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 130 OF 2016

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

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COURT: On the 11th of March of this year, the defendant pleaded guilty at the Eastern Magistracy to two charges, namely:

(1) Possession of a dangerous drug, contrary to section 8(1)(a) and (2) of Chapter 134 of the Laws of Hong Kong; and

(2) Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of Chapter 134 of the Laws of Hong Kong.

A summary of the facts submitted by the prosecution in support of those charges was read in court and admitted by the defendant. He was thus committed to this court for sentence as provided for by section 81B of the Magistrates Ordinance, Cap 227 of the Laws of Hong Kong.

Today before me he has confirmed his earlier pleas of guilty and that summary of facts.

Charge 1 alleged that the defendant was, on 19 May 2015, outside 6 Arthur Street, Yau Ma Tai in Kowloon, in possession of a dangerous drug, namely 2.32 grammes of methamphetamine hydrochloride.

Charge 2 alleged that the defendant, on 3 June 2015, at the staircase near the 1st floor, 81 San Fung Avenue in Sheung Shui in the New Territories, unlawfully trafficked in a dangerous drug, namely 1.24 kilogrammes of a powder containing 312 grammes of ketamine.

The summary of facts reveal the following.

As to Charge 1, on 19 May 2015, at around 11.35 am, a patrolling police officer intercepted the defendant outside 6 Arthur Street in Yau Ma Tei. He was searched and was found to be in possession of a tinfoil packet which the police officer suspected contained a dangerous drug. He was arrested and cautioned by the police officer for the offence of being in possession of a dangerous drug.

In response to that caution, the defendant told the police officer that the drug was ‘Ice’ and that it was for his own consumption and had been purchased by him the previous evening for $1,000.

He was taken to the Yau Ma Tei Police Station where after confirming his earlier admissions in response to the caution, he was released on bail.

The drug found in his possession was analysed by the Government Chemist and determined to be 2.32 grammes of methamphetamine hydrochloride.

Insofar as Charge 2 is concerned, the facts reveal the following.

At around 3.40 pm on 3 June 2015, Customs officers were observing a seven-seat motor vehicle which had earlier entered into Hong Kong via the Lok Ma Chau Boundary Control Point. That vehicle was then heading in the direction of Sheung Shui. At about 3.35 pm, the defendant was seen to alight from the vehicle at Lung Sum Avenue and was kept under observation. Some 25 minutes later he was intercepted by the Customs officers and searched. Around his waist they found a transparent plastic bag wrapped with adhesive tape and this, they suspected, contained dangerous drugs.

He was arrested and cautioned, and in response said that the plastic bag contained ketamine which was for his own consumption.

The contents of the plastic bag was subsequently analysed by the Government Chemist and was found to contain 1.24 kilogrammes of a powder containing 312 grammes of ketamine.

It was an admitted fact that the value of the ketamine was estimated to be $158,720.

The travel movement record of the defendant showed that he had last left Hong Kong for China via the Lok Ma Chau Control Point at around 3.20 pm on 1 June 2015 and had returned to Hong Kong at around 3.40 pm on 3 June 2015 via the same boundary control point.

In the course of the proceedings before me today, an antecedents statement, which had been prepared by Customs and Excise officers, was read in court. Amongst other things, it confirmed that he is 28 years of age; he has convictions going back as far as 2002, the last conviction was in 2005 - none of those convictions were for drug‑related matters. It indicated in the document that he was a waiter earning some $14,000 per month, and more importantly he had asserted that he was not himself a drug abuser.

Mr Percy, on his behalf, objected to that assertion and indicated to me that his instructions were not only had he not said this to the officer who had prepared that document, but that, in fact, as is indicated by his response on both occasions to his arrest, that he had been a user of drugs for some time. Mr Percy’s instructions were that whoever had prepared that document had not interviewed the defendant.

I have indicated that it would be of benefit to all concerned in due course if Mr Melwaney, on behalf of the prosecution, were take up this matter with those concerned.

Whilst not specifically asked by me, it would appear that no issue is taken by the prosecution with the assertion that the defendant was himself a drug user and now I proceed to deal with the matter on that basis.

On his behalf, Mr Percy has told me today that the defendant is, indeed, a person who is drug-addicted and that the methamphetamine hydrochloride, the subject of Charge 1, was for his own consumption, and that one-third of the ketamine, the subject of Charge 2, was likewise for his own consumption.

In particular, Mr Percy said that his instructions were that insofar as Charge 2 was concerned, the defendant had agreed to be paid the sum of $5,000 and to receive one‑third of the quantity of ketamine for bringing it into Hong Kong on the day of the offence.

Whilst I would accept that a portion of the ketamine may well have been for his own consumption, I have indicated to Mr Percy that I am not persuaded that one-third is for his own consumption. It has not been suggested that this matter should be the subject of any further inquiry.

Turning now to the correct approach to sentencing. Dealing first with Count 1, I believe - and this was the submission of Mr Percy - that the appropriate starting point before trial for simple possession in the circumstances of this case is 12 months’ imprisonment. From that, of course, he is entitled to a full one-third discount to reflect his plea of guilty.

Dealing now with Count 2, the Court of Appeal in 2009 has provided guidance for sentences dealing with trafficking in quantities of the drug ketamine. I refer specifically to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. In that judgment, the Court of Appeal has indicated that for between 300 and 600 grammes of ketamine, a sentence before trial without additional aggravating factors was between 9 and 12 years’ imprisonment. In the circumstances of the present case given the quantity, I believe that the correct starting point before aggravation is one of 9 years for Count 2.

Are there aggravating factors in the circumstances of this case? Mr Percy accepts that the importation of this drug into Hong Kong is such an aggravating factor. Given the quantity of the drugs involved and the nature of the drug, I am of the opinion that 12 months is the appropriate aggravating factor to be added to the starting point of 9 years.

Quite obviously, the defendant is entitled to a full one‑third discount from that starting point. That would result for Count 2, without other matters taken into account, of a sentence of 6 years and 8 months’ imprisonment.

As I have said, I do not accept the bald assertion that one-third of these drugs were for the defendant’s consumption. I do accept that some portion, albeit a small portion, is for his own consumption. Taking this into account and the plea of guilty, as I have indicated, I believe the appropriate sentence on Count 2 is one of 6 years’ imprisonment.

That then brings me back to the approach to the two charges, Counts 1 and 2. There are two factors of significance here: the first is that Count 1 is a separate and discrete offence which, in the normal course of events, would require a consecutive or partially consecutive sentence; the second matter is the question of totality.

Taking all into account, including the early plea and including the significant sentence which is to be imposed on Count 2, I am minded to order that the whole of the sentence on Count 1 be served concurrent to the sentence on Count 2.

For the avoidance of doubt, the sentence on Count 1 is one of 8 months’ imprisonment; the sentence on Count 2 is one of 6 years’ imprisonment, and I direct that both sentences be concurrent one to the other.