HKSAR v. CHAN CHUN TAK

DCCC 11/2022

[2022] HKDC 944

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 11 OF 2022

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REASONS FOR SENTENCE

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Introduction

1.  The defendant (“D”)  is convicted on his own plea of 2 Charges of “Trafficking in a dangerous drug”, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. Particulars of Offence for the 2 Charges were the same, stating that D, on 3 September 2021, on a private car bearing registration mark TA2437, outside No 133 Hoi Bun Road, Kwun Tong, unlawfully trafficked in a dangerous dug.  Charge 1 involved 23.7 grammes of a solid containing 19.7 grammes of ketamine while Charge 2 involved 81 grammes of a solid containing 53.55 grammes of ketamine.

Facts of Case

2.  The facts of the case as admitted by D is simple and straight forward.  At about 9:44 pm on 3 September 2021 at a roadblock outside 133 Hoi Bun Road, Kwun Tong, the police intercepted a private car registration number TA2437 (“the Car”)  with D the only person onboard as the driver.

3.  Upon an initial search of the Car, the police found 1 plastic bag containing 35 plastic bags containing a total of 23.7 grammes of a solid containing 19.7 grammes of ketamine.  D was arrested and admitted under caution that he was unemployed recently, thus intended to earn money by selling some dangerous drugs (“Charge 1”).

4.  Upon further search of the Car, the following items were found:-

(a)  Under the driver’s seat, 1 plastic bag containing 25 plastic bags containing a total of 16.5 grammes of a solid containing 6.09 grammes of ketamine;

(b)  At the boot of the Car, 3 plastic bags containing a total of 96 plastic bags containing a total of 64.5 grammes of a solid containing 47.46 grammes of ketamine. (“Charge 2”)

5.  Another plastic bag containing 99 empty plastic bags was found in the boot of the Car.              At a compartment near the driver’s left armrest cash HK$18,580, and at the front passenger seat 1 mobile phone, were also found.

6.  Another mobile phone and cash HK$1,122 were also found on D’s person.

7.  The car camera of the Car and its audio recording indicated that on that day from around 5:20 pm to the time of his arrest at 9:44 pm, D had been to various locations, including Kai Tak and Tseung Kwan O, and had conversations with a number of customers in relation to the selling of dangerous drugs.

8.  The car was rented by D on 11 August 2021 for 1 month at HK$6,000.  No contraband was in the car when it was handed over to D.

9.  The estimated street value of the dangerous drugs in Charge 1 was HK$17,301 and those in Charge 2 HK$59,130.

Background of D

10.  D is 28 years old, born in the Mainland on 7 March 1994.  He came to Hong Kong to join his parents and 2 sisters in 2001.  He is single and resided with his family in a public housing unit in Tseung Kwan O.  D received education up to Form 6 level in Hong Kong.  He worked in a trading company between 2019 and 2020, rising from a sales representative to the manager of that department with a monthly salary of HK$20,000 before he was made redundant in April 2020 due to the Covid-19 pandemic which seriously affected his company.  Prior to the present offences, he had 2 previous criminal convictions, “Acting as MOTS” in 2012 and “Possession of dangerous drugs” in 2015.  He also breached the Probation Order imposed by the court in 2012, but had never been sentenced to imprisonment before the present offences.

Mitigation

11.  In mitigation, Mr Ma representing D, submitted that D is remorseful and pleaded guilty to the Charges.  He is determined to turn a new leaf.  Mitigation letters written by D himself, his family members, his previous employer and Mr Chang Man Tat of the Good Shepherd Renewal Ministry Limited were submitted in support.  Mr Ma accepted that personal background carries very little weight in serious offences like trafficking in dangerous drugs, and realistically submitted that in the present case the timely guilty plea is the only valid mitigating factor.

12.  Apart from referring to the tariff applicable to trafficking in ketamine in SJ v Hii Siew Cheng[1], Mr Ma cited HKSAR v Wan Lau Mei[2], and asked the court to impose a sentence on both Charges using the total quantity of narcotics involved and to order the sentences to run concurrently.

Sentence

13.  According to the guidelines set by the CA in SJ v Hii Siew Cheng (supra), sentence for trafficking in 10 to 50 grammes of ketamine should be between 4 to 6 years, and 6 to 9 years for 50 to 300 grammes.  In HKSAR v Herry Jane Yusuph[3], the CA stated that a discretionless starting point based upon quantity of the narcotics involved alone is not the correct approach, and provided a 6-step approach in assessing the appropriate sentence in offences of this nature.

14.  Basing on the quantity of the narcotics involved, the starting point for trafficking in 19.7 grammes of ketamine in Charge 1 should be around 4 years and 3 months, and around 6 years and 3 months for 53.55 grammes in Charge 2.  All the narcotics involved were found in the Car.  The reason why 2 Charges were framed was purely due to the sequence when they were found by the police.  I am satisfied that D was trafficking in all the ketamine involved in this case at the same time.  The overall sentence should be assessed according to the total amount of ketamine involved, ie 73.25 grammes.  For this quantity of ketamine, the starting point should be in the region of 6 ½ years.

15.  It is obvious that D was not merely a courier or store-keeper, but an actual trafficker.  In HKSAR v Islam Azharul [4] the CA considered that this increased the culpability of the offender which warrants an enhancement of 6 months to the starting point basing on quantity.

16.  Time and again the CA has stated that Trafficking in dangerous drugs is a very serious offence so that the element of general deterrence is of paramount importance.  Personal background of an offender carries little weight in terms of mitigation, see eg AG v Kong Kin Man[5]. Apart from the timely guilty plea, I see no other mitigating factor warranting further discount in this case.

17.  Having taken all relevant factors into consideration, for Charge 1, I adopt 4 years and 3 months as the starting point, reduce it by 1/3 for the timely guilty plea, and sentence D to 2 years and 10 months.  For Charge 2, I adopt 6 years and 3 months as the starting point, reduce it by 1/3 for the timely guilty plea, and sentence D to 4 years and 2 months.  Taking the totality principle into account, I order 4 months in Charge 1 to run consecutively to the sentence in Charge 2.  The resulting total sentence is 4 years and 6 months, which is equivalent to a starting point of 6 years and 9 months.

18.  D is therefore sentenced as follows:-

Charge 1 : 2 years and 10 months, 4 months consecutively to Charge 2

Charge 2 : 4 years and 2 months

Total sentence : 4 years and 6 months