HKSAR v CHOI MO CHUNG

DCCC 231/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 231 OF 2012

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Reasons for Sentence

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Introduction

1.  The defendant is convicted on his own plea of:

(i) the 1^st Charge of trafficking in dangerous drugs, namely 47 tablets containing 0.18 gramme of nimetazepam, 30 tablets containing 0.02 gramme of flunitrazepam, 4.85 grammes of a crystalline solid containing 4.85 grammes of methamphetamine hydrochloride and 1.51 grammes of a solid containing 1.15 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134; and

(ii) the 2^nd Charge of possession of poison included in Part I of the Poisons List, namely 1 capsule containing sildenafil, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap.138.

Facts

2.  The facts admitted by the defendant are as follows:

(i) At about 6:50 pm on 20 December 2011, PC 6315 (“PW1”) saw the defendant standing outside a building at No.54, Lee Garden Road, Causeway Bay, Hong Kong, with a white bag (the “Bag”) in his hand. When the defendant saw the police, he immediately turned around and attempted to enter the building. PW1 then went over and intercepted the defendant. Upon search of the Bag, PW1 found:

(a) 5 foilpacks containing a total of 47 tablets (“E1”);

(b)3 foilpacks containing a total of 30 tablets (“E2”);

(c) 1 foilpack containing 1 capsule (“E3”);

(d)9 re-sealable transparent plastic bags of suspected dangerous drug (“E4”); and

(e) 1 re-sealable transparent plastic bag of suspected dangerous drug (“E5”).

(ii) PW1 then arrested the defendant for possession of dangerous drugs.

(iii) After the defendant was brought to the police station, PC11693 (“PW2”) found another 2 re-sealable transparent plastic bags of suspected dangerous drug (“E6”) inside a hidden compartment of the defendant’s belt.

(iv) Upon forensic examination, government chemist found that:

(a) E1 contained a total of 0.18 gramme of nimetazepam;

(b)E2 contained a total of 0.02 gramme of flunitrazepam;

(c) E3 contained sildenafil, which is a listed Part I poison;

(d)E4 contained a total of 4.32 grammes of a crystalline solid containing 4.32 grammes of methamphetamine hydrochloride;

(e) E5 contained 1.51 grammes of a solid containing 1.15 grammes of cocaine; and

(f) E6 contained a total of 0.53 gramme of a crystalline solid containing 0.53 gramme of methamphetamine hydrochloride.

(v) At the material time, the defendant possessed E1, E2, E4, E5 and E6 for the purpose of trafficking.

The defendant’s previous conviction record and antecedents

3.  The defendant has three previous convictions, including one conviction of possession of dangerous drugs sentenced in October 1999. Since that drug-related conviction dated back to 1999 which was about 12 years ago before the commission of the present offence, for the purpose of sentencing in this case I will disregard that conviction.

4.  The defendant was born in September 1969. He is now 42 years old. He has received education up to secondary one level. He was a transportation worker before he was arrested on 20 December 2011. He is single and lived with his parents in Lei Tung Estate before his arrest.

Mitigation

5.  Originally, Mr Au submitted that on the evening of 20 December 2011, the defendant planned to spend the night with his girlfriend in a guest house at No.54 Lee Garden Road and most of the dangerous drugs seized were intended to be shared by the defendant with his girlfriend for that evening until the next morning. Upon hearing that submission, Miss Ng informed this court that the prosecution could not accept this allegation and would ask this court to hold a Newton hearing. Mr Au then asked this court to stand down so that he could take further instructions from the defendant. I acceded to Mr Au’s request and stood the case down.

6.  When the hearing was resumed, Mr Au informed this court that he wished to revise his mitigation. Mr Au then submitted that at the material time, the defendant was going to share:

(i) E6 (0.53 gramme of methamphetamine hydrochloride)

(ii) 10 tablets out of E1 (47 tablets containing a total of 0.18 gramme of nimetazepam); and

(iii) 3 tablets of E2 (30 tablets containing 0.02 gramme of flunitrazepam)

with his girlfriend for the night, and all the other dangerous drugs were in the defendant’s possession for the purpose of trafficking. Mr Au also referred me to Attorney General v Ching Kwok Hung [1991] 2 HKLR 125 and HKSAR v Ngan Cheung Nim DCCC 49/2010. (Miss Ng informed this court that the prosecution did not have objection to Mr Au’s submission as to the revised quantity of drugs intended to be shared with the defendant’s girlfriend.)

Sentencing authorities

7.  The 1^st Charge involves trafficking in four types of dangerous drugs, namely 0.18 gramme of nimetazepam, 0.02 gramme of flunitrazepam, 4.85 grammes of methamphetamine hydrochloride and 1.15 grammes of cocaine.

8.  According to Mr Au’s mitigation submission, out of the 4.85 grammes of methamphetamine hydrochloride, 4.32 grammes (E4) were for the purpose of trafficking, and the defendant was going to share 0.53 gramme (E6) with his girlfriend. In this connection, I quote paragraphs 15 and 16 of HKSAR v Chong Heung Sang CACC 221/2009 which reads:

“15. As for social trafficking, I would respectfully repeat what Stuart-More VP has said in Hii Siew Cheng:

‘98. The second matter is closely related to the first. We should perhaps repeat what was said in HKSAR v Wong Suet-hau [2002] 1 HKLRD 69 wherein this Court dealt with the approach to be taken to ‘social trafficking’. The Court of Appeal in that case said:

51. In our opinion, while some of the ‘social’ or ‘non-commercial’ trafficking cases involving small quantities of drugs can properly be regarded, when all the circumstances are examined, as falling into the lower end of the sentencing scale applicable to the dangerous drug in question, we are firmly of the view that this factor should not, in itself, provide a general basis for imposing a lighter sentence, than would have been imposed for commercial trafficking. The ‘friend’ who starts off or perpetuates another’s abuse of drugs, is as dangerous to the community as the commercial supplier of small quantities, who will generally traffic in drugs with those already addicted.”

16. Here, when sentencing the applicant, Wright J said:

‘… You accept, however, that not only did you traffic by importing these drugs, but that you, according to your version, intended to share them with others.

That type of distribution remains trafficking. Whether you are selling them or just doing what is erroneously, in my view, referred to as ‘social trafficking’ does not avail you.’”

Adopting Mr Justice Wright’s view as aforesaid, 0.265 gramme of methamphetamine hydrochloride (being half of E6) intended to be distributed to the defendant’s girlfriend for her consumption was still dangerous drug intended to be trafficked by the defendant, and only 0.265 gramme was for the defendant’s own consumption. On that basis, out of the present 4.85 grammes of methamphetamine hydrochloride in the 1^st Charge, 4.585 grammes (being the aggregate of 4.32 grammes and 0.265 gramme) were for the purpose of trafficking and 0.265 gramme was for the defendant’s own consumption.

9.  In HKSAR v Cheung Kwok Leung Lowence [2003] 3 HKLRD 542, the applicant was convicted of two charges of trafficking in dangerous drugs. The second charge related to (a) 31.5 grammes of ketamine, (b) 95 tablets of a mixture comprising a total narcotic quantity of 9.51 grammes of ecstasy and 0.74 gramme of ice, (c) 23 tablets of a mixture comprising a total narcotic content of 0.7 gramme of ice, 0.2 gramme of ketamine and 0.55 gramme of diazepam, (d) about 170 tablets and 2 tablet fragments containing a mixture of a total narcotic content of 5.78 grammes of ice and 11.59 grammes of ketamine, and (e) 5 tablets containing a total narcotic content of 0.2 gramme of nimetazepam. On the second charge, the sentencing judge sentenced the applicant on the basis of the combined narcotic content of the ice component in (a), (b), (c) and (d), which totaled 7.22 grammes, and did not take into account the nature or narcotic quantity of the other substances. On appeal against sentence, the Court of Appeal said:

“40. Where other drugs are in the group, but the quantities are very small, or where their addition to, or inclusion with, other items would not make any difference to the total sentence, the sentencer can, properly, ignore them when computing sentence.”

In imposing sentence on the 1^st Charge, I will apply HKSAR v Cheung Kwok Leung Lowence – I will sentence the defendant on the 1^st Charge on the basis of 4.85 grammes of methamphetamine hydrochloride (out of which 4.585 grammes were for the purpose of trafficking and 0.265 gramme was for the defendant’s own consumption) and 1.15 grammes of cocaine, and I will ignore the 0.18 gramme of nimetazepam and 0.02 gramme of flunitrazepam.

10.  According to R v Lau Tak Ming [1990] 2 HKLR 370 and Attorney General v Rojas Pedro Nel [1994] 1 HKC 342, for trafficking in a quantity of up to 10 grammes of cocaine, the sentence should be 2 to 5 years’ imprisonment.

11.  According to Attorney General v Ching Kwok Hung [1991] 2 HKLR 125 and HKSAR v Capitania Edwin CACC 28/2004, for trafficking in a quantity of up to 10 grammes of methamphetamine hydrochloride, the sentence should be 3 to 7 years’ imprisonment.

12.  Since I will sentence the defendant on the 1^st Charge on the basis of two types of drugs, namely methamphetamine hydrochloride and cocaine, I have considered the Court of Appeal’s decisions on the two sentencing approaches, i.e. “combined” approach and “individual” approach: HKSAR v Yip Wai Yin CACC 80/2003, HKSAR v Cheng Yat Ming CACC 455/2006, HKSAR v Ho Chi Shing CACC 216/2008 and HKSAR v Ko Ka Hing CACC 355/2008. In this connection, the Court of Appeal said in HKSAR v Ho Chi Shing:

“14. In the ‘combined’ approach, … the most serious drug provides the starting point of sentence, which can then be adjusted upwards to take into account the quantity of the less serious drug.

15. The ‘individual’ approach … involves a separate starting point for each of the component drugs and the starting points will then be combined and adjusted to form an overall starting point.

16. Whether to adopt the ‘combined’ or the ‘individual’ approach depends on the circumstances of a particular case and it is a matter of discretion for the sentencing judge. Whatever approach is adopted, the important consideration is the totality of the overall starting point.

17. The applicant trafficked in substantial quantities of both cocaine and ketamine. The drugs were not mixed, but in separate and distinct packages. The judge was entitled to adopt the ‘individual’ approach by identifying separate starting points for trafficking in the cocaine and ketamine, and then adopting an overall starting point.”

13.  As the methamphetamine hydrochloride and cocaine in the present case were not mixed together but were contained in different packages, I will adopt the “individual” approach.

Sentence

14.  For the 4.85 grammes of methamphetamine hydrochloride in the 1^st Charge (out of which 4.585 grammes were for the purpose of trafficking and 0.265 gramme was for the defendant’s own consumption which in itself will carry a term of imprisonment), I will adopt a starting point of 4½ years’ imprisonment. For the 1.15 grammes of cocaine in the 1^st Charge, I will adopt a starting point of 2 years’ imprisonment. Having given consideration to totality principle, I consider an overall starting point of 5 years’ imprisonment appropriate.

15.  As the defendant pleaded guilty to the charge, I give him 1/3 discount thus reducing his sentence on the 1^st Charge to 40 months’ imprisonment. There being no other valid mitigating features justifying further reduction in sentence, the defendant is sentenced to 40 months’ imprisonment on the 1^st Charge.

16.  As for the 2^nd Charge, having taken the defendant’s guilty plea into account, I impose a fine of $500.