HKSAR v. CHAU PETER

DCCC950/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 950 OF 2010

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Reasons for Sentence

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1.  Peter Chau, you have been convicted on your own plea of trafficking in dangerous drugs. The offence occurred on 11 December 2008 at a room in a building in Shanghai Street in Mongkok. At about 1.26 pm that day police entered that room and found you there together with a female. A search was conducted of the room. Amongst the items found was a Seiko watch box. Inside the box the police found 38 small plastic bags which contained a total of 8.91 grammes of a crystalline solid containing 8.81 grammes of methamphetamine hydrochloride and another plastic bag which contained 38 tablets and two tablet fragments containing a total of 0.59 grammes of midazolam.

2.  These are the drugs referred to in the charge. The estimated retail value of those drugs was approximately $8,000.  In the same premises the police found an electronic weighing scale, two bags containing piles of small empty re-sealable plastic bags and two bundles of drinking straws.

3.  When you were first arrested you claimed that the drugs were for your own consumption.  Later that day when you were the subject of a video interview you gave a second story.  You claimed that a friend had asked you to store the drugs for him and that he had agreed to pay you $50 for doing so.  When you gave evidence in the High Court about this matter, you gave a third story which was obviously disbelieved by the jury in that the drugs were not connected to you and that you had been framed.  Today a fourth account has been put forward on your behalf by Mr Donald and that is that although most of the drugs were for your own consumption, you being a drug addict, you did intend to supply some of them to friends. 

4.  As you cannot fail to be aware there are few offences that come before the courts that are more serious than that of trafficking in dangerous drugs.  As I am sure Mr Donald would have informed you, those who traffic in up to 10 grammes of methamphetamine hydrochloride can expect the court, in normal circumstances, to adopt a starting point of between 3 and 7 years’ imprisonment.  In your case you had with you both 8.81 grammes of methamphetamine hydrochloride and also the 38 tablets and two fragments of tablets of midazolam. 

5.  Mr Donald has submitted that this court should take into account the allegation that you were a drug addict and that the majority of those drugs were for your own consumption.  That is not an allegation that I am prepared to accept.  As I have already commented, this is the fourth version of matters that has been put forward by you.  While I am prepared to accept that you were a drug addict and that a small quantity of the drugs might have been for your own consumption, I am satisfied that the majority were for the purpose of supplying to others.

6.  In reaching that conclusion I have borne in mind that the methamphetamine hydrochloride was in 38 small plastic bags.  I have also taken into account that you were in possession of weighing scales and a substantial quantity of small empty re‑sealable plastic bags.  These matters indicate that you were in the business of trafficking.  Furthermore the drugs had a street value of over $8,000.

7.  As I have said, I am prepared to accept that a small quantity were for your own consumption.  If it had not been for that factor I would have adopted a starting point of 6 years’ imprisonment.  Bearing in mind that factor I am prepared to adopt a starting of 5½ years’ imprisonment, 66 months.  Defendants who enter timely pleas of guilty are entitled to a discount of one‑third.  In your case your plea cannot be said to be timely.  You were originally committed for trial in the High Court for the offence now before the court.  You pleaded not guilty to the offence and were convicted by a jury on 10 November 2009 following a trial in which you gave evidence.  You were sentenced to 6 years’ imprisonment for this offence. 

8.  On 12 August 2010 the Court of Appeal allowed your appeal against conviction of the offence now before this court and ordered a re-trial.  In view of these circumstances, although I am not prepared to give you the full discount of one-third for your plea of guilty to this offence, I am prepared to give you a discount of just over 25 per cent, which would result in a sentence of 49 months’ imprisonment, 4 years and 1 month. 

9.  On the same day you were sentenced by the judge in the High Court to 6 years’ imprisonment in respect to this offence, the judge sentenced you to 2 years 8 months’ in respect of an offence of possessing false instruments, namely false credit cards.  Both offences resulted from the same police raid on 11 December 2008.  The judge, taking into account the totality of your criminality, ordered that 20 months of the sentence imposed for the offence of possession of false instruments should run consecutively to the sentence he imposed for this offence. 

10.  The sentence was passed on you on 10 November 2009 therefore totalled 92 months that is, 7 years 8 months.  Bearing in mind that in accordance with clause 2(3) of Schedule 6 of the Criminal Procedure Ordinance, Cap.221 the sentence that I pass today will run from 10 November 2009, the date you were originally sentenced for this offence by the judge in the High Court.  I have to consider the total sentence that would have been appropriate if you had been sentenced for both offences on 10 November 2009. 

11.  On the basis that you had pleaded guilty to this offence but only been entitled to a discount of 25 per cent in respect of your plea, I am of the view that the total sentence on this basis would have been 6 years’ imprisonment, 72 months.  You received a sentence of 2 years 8 months’ imprisonment in respect of the charge of possession of false instruments, in other words, 32 months. 

12.  I accordingly sentence you to 49 months’ imprisonment on this charge but order that 40 months of that sentence should run consecutively to the sentence passed on you in respect of the offence of possession of false instruments.  This will result in a total sentence for both offences of 72 months’ imprisonment.