HKSAR v. CHAN CHEUK LAP

DCCC 109/2020

[2020] HKDC 824

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 109 OF 2020

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REASONS FOR SENTENCE

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Introduction

1.  The defendant pleads guilty to one charge of trafficking in 10.2 grammes of a crystalline solid containing 9.33 grammes of methamphetamine hydrochloride (“ice”), 40 tablets containing 0.41 gramme of nimetazepam and 10 millilitres of a liquid containing 11.0 grammes of gamma-butyrolactone (“GBL”), contrary to s 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 

2.  Shortly stated, at around 2:37 am on 22 March 2017 the defendant came out from his home at a flat on 5/F of a building situated on 21 Lung To Street, Kowloon City and he was stopped by the police.  Upon body search, one plastic bag containing a locked iron box was found on the defendant.  As requested by the police, the defendant unlocked the iron box with his key.  Inside the iron box, there found 3 transparent plastic bags and a bottle containing liquid.

3.  Upon examination by the government chemist, they were confirmed to be the subject matters of the charge.  They are as follows:-

(i)  1 plastic bag containing 10.2 grammes of crystalline solid containing 9.33 grammes of ice;

(ii)  6 foilpacks containing a total of 40 tablets containing 0.41 gramme of nimetazepam; and

(iii)  A bottle containing 10 millilitres of a liquid containing 11.0 grammes of GBL.

4.  Under caution, the defendant stated that all the drugs found were for his self-consumption.  A house search was conducted with no paraphernalia or drug was found.

Criminal record

5.  The defendant has one previous record of possession of a dangerous drug case in 2008.  He was put under probation for 12 months.

Mitigation

6.  The defendant is now aged 36.  He is single and lived with his mother who is now aged 58.  He has received education up to Form 3.  He previously worked as a salesman earning around $20,000 a month and has been unemployed since 2016.

7.  The defendant was first arrested for this case on 22 March 2017.  While he was on police bail, he absconded to Taiwan.  However, he decided to return to Hong Kong with full knowledge that he would be arrested and intended to face the consequences of his wrongdoings.

8.  The defendant’s father is now aged 70 and suffers from reduced mobility.  It is defendant’s strong wish to be released from prison as soon as possible in order to personally take care of his father.

Sentencing consideration

9.  The Court of Appeal has laid down tariffs for trafficking in ice.  Trafficking in up to 10 grammes of ice carries a sentence of 3 to 7 years: see HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. According to my calculation, 9.33 grammes of ice would attract a starting point of about 6 years and 8 months (80 months).

10.  As to nimetazepam, in HKSAR v Wong Kin Kau CACC 269/2009, the court stated that the sentencing tariff for nimetazepam should be the same as that of Ketamine, namely up to 1 gramme, it is within the court’s discretion.  The amount of nimetazepam in this case is only 0.41 grammes.  Applying a mathematical approach, a starting point of 9 months is warranted.

11.  For GBL, in HKSAR v Jin Bin & Another HCCC 223/2018, the court held (at para 64) that the starting point for GBL should be 50% over the starting point for benzodiazepines.  The court also observed that for Diazapam (ie a form of benzodiazepines) the appropriate sentence should be about 2/3 of that appropriate for Methaqualone.  In effect, the court held that the starting point for GBL is 1.005 times (150% x 2/3 = 1.005) of the starting point for Methaqualone.  The tariff for Methaqualone is set out in R v Chan Chi Man CAAR 19/1986.  If the amount is under 500 grammes, it is what the court thinks fit.  The quantity of GBL in this case is 11.0 grammes only.  Similarly, applying a mathematical approach, the starting point would be 0.1 month.

12.  The Court of Appeal in HKSAR v Chan Yuk Leong, CACC  318/2013, by reference to previous decided cases, has provided three means of cross-checking the appropriateness of the overall starting point in case of a trafficking involving different types of dangerous drugs:-

(i) The first means is called the “absurdity test”. In the present case, assuming the whole quantity of drugs seized (20.74 grammes) contained only the most serious drug, ie, ice, the starting point would have been about 92 months’ imprisonment.

(ii) The second means is called the “conversion test”. In the present case, when using the sentencing guidelines for ice as the base, a more potent drug, and adjusted upward to allow for the quantity of nimetazepam and GBL. The conversion test remains at 6 years 8 months as the amount of nimetazepam and GBL seized are rather small.

(iii) The third means is called the “ratio test”. It can be applied as follows:-

Name of DD	Sentencing assuming 20.74 grammes of single drug	Ratio	Sentence
Ice	7.72 years	45%	3.47 years
Nimetazepam	4.54 years	2%	0.09 years
GBL	0.02 years	53%	0.01 years
		Total:	3.57 years

From the above, it is apparent that the 9.33 grammes of ice seized is the determining factor in this case, whereas the quantities of nimetazepam and GBL are rather negligible. Obviously, the ratio test does not reflect the real situation.

13.  In my view, the Court of Appeal in HKSAR v Chan Yuk Leong CACC  318/2013 did not specify that all 3 tests needed to be followed and adopted across the board.  These tests are just a means to cross check the sentence so imposed by the sentencing court in order to avoid the sentence being too harsh.  In fact, the Court of Appeal specifically remarked in paragraphs 20 and 22:-

“Having set out the above tests, we remind ourselves that the court has often warned against slavishly applying a strictly mathematical approach. The purpose of setting tariffs is to avoid any perceptions of injustice arising from disparity in sentences. … As discussed above, the three tests set out above are only methods whereby the court cross-checks whether the total sentence is appropriate.”

14.  The presence of the 0.41 grammes of nimetazepam tablets and 11 grammes of GBL pale into insignificance as far as the overall sentence of ice is concerned both in terms of its quantity and its potency.  

15.  While I do not overlook the fact that the amount of nimetazepam and GBL are rather negligible, I do not however think that it is appropriate to ignore the trafficking of the these two kinds of drug altogether.  Therefore, I would use the combined approach as urged by Mr Leung for the defendant when I come to impose the sentence of this charge.  Mr Leung asks for an extra of 2 months on top of the 80 months for the sentence of ice is appropriate.  In the end, I agree that the presence of nimetazepam and GBL would not have made more than a marginal difference.  I add an extra 2 months to the starting point, making the total starting point to become 82 months.

Self-consumption of the ice

16.  The principles relevant to self-consumption are set out in detail in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69.  Where it was accepted that a significant proportion of the drugs were for the defendant’s own consumption, the court should adjust the sentence to reflect the fact that not all drugs were for trafficking (see p.79H-I).

17.  In his written submission, Mr Leung submitted that the defendant had been a drug addict for over 10 years.  At the relevant time, he consumed 1-2 grammes of ice everyday.  Out of the 9.33 grammes of ice seized, 2 grammes were for his own consumption.  However, Mr Leung informed the court today that the defendant does not intend to rely on the fact that part of the ice was for own consumption.

18.  In my view, the defence version is hard to believe.  At the time when the defendant was intercepted by the police, he was leaving his home with the drugs.  I would not expect him to bring along those drugs which he said for his own consumption when he was engaging in trafficking activities.  He would conceal them such as hiding it in his home.  It would not make any sense that he would choose to consume drugs in a riskier place, a place outside his home.  He must have realized that it would only increase the chance of his being apprehended by the police. Furthermore, the defendant had not been convicted of any possession of dangerous drug offence in the past 12 years, indicating that it is unlikely that he is an addict, and even more unlikely that he is such a serious addict.

Conclusion

19.  Apart from the defendant’s guilty plea, there is not anything of substance which would justify a further reduction in sentence.  I reduce the starting point from 82 months to 54 months to reflect his timely plea.  He is sentenced to 4 years 6 months’ imprisonment.