HKSAR v. CHAN CHI HANG

DCCC 1022/2024

[2025] HKDC 1128

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1022 OF 2024

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REASONS FOR SENTENCE

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1.  Mr Chan pleaded guilty before me to one charge of Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. Particulars are that he, on 18 May 2024, outside No 24 Sai Yee Street, Mong Kok, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 7.08 grammes of a solid containing 6.10 grammes of cocaine.

Facts admitted by Mr Chan

2.  On 18 May 2024, at about 0050 hours, Mr Chan drove a private vehicle towards a police roadblock situated at outside No 24 Sai Yee Street, Mong Kok, and stopped.  There was no one else on board.  Police directed Mr Chan to alight for a search.  When he did so, he pulled his shorts near where his private parts were.  A plastic bag containing 4 plastic bags containing a total of 0.89 gramme of a solid containing 0.76 gramme of cocaine (E1)  fell from his shorts.  Upon body search, a plastic bag containing 26 plastic bags containing a total of 6.19 grammes of a solid containing 5.34 grammes of cocaine (E2)  was found inside the boxer worn by Mr Chan.

3.  Mr Chan was arrested.  Under caution, he said he sold drugs in order to earn quick money as he was in debt.  In the subsequent VRI, he said:

(a)  He was solicited by an unknown person to traffic in drugs at a pub in early April 2024;

(b)  He was instructed to rent a private car and to pick up cocaine ie E1-2 which were hidden in scrubs around En Chau Estate;

(c)  He was later instructed to go to Mong Kok to await further instructions;

(d)  Someone would contact him and give him cash reward after all the drugs were sold;

(e)  The Xiaomi phone found on him was used to communicate with the unknown drug supplier; and

(f)  He was not a drug addict.

Criminal record

4.  Mr Chan has a previous clear record.

Antecedents

5.  Mr Chan is aged 27 (26 at the time of the offence), educated to Yi Jin diploma level.  He was working as a construction worker with monthly income of $35,000 at the time of arrest.  Mr Chan is single.  He was living with his parents and younger brother.

Mitigation

6.  Ms Lorinda Lau of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chan.  The following is a summary of the mitigation submissions.

7.  Mr Chan’s father (62, a truck driver)  and mother (50, resuming to work after being a housewife)  and his younger brother (17)  used to be residing with Mr Chan.

8.  Mr Chan’s parents, younger brother and some of his paternal relatives are in court to give him support.

9.  Mr Chan has never committed any offence prior to the present offence. He is also very self-motivated.  He has previously attended computer and plastering courses; and has been a project subcontractor.  He has trained to be a reinforcement fixing worker.  He has helped a church with renovation work on a pro bono basis (certificate submitted).

10.  Ms Lau submitted the sentencing guidelines for trafficking in cocaine are contained in R v Lau Tak Ming and Ors [1990] 2 HKLRD 370: Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.  For trafficking in under 10 grammes of the drug, the sentence is between 2 and 5 years.

11.  Ms Lau referred to the 6-step approach of sentencing a drug trafficker in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

12.  Ms Lau submitted that in this offence, Mr Chan was playing the role of a courier.

13.  Ms Lau submitted that for a mitigating factor of “self-consumption” to be successful, it has to be established a significant proportion of the drug was for the defendant’s own consumption: HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69.

14.  However, Ms Lau also relied on the following passage in HKSAR v Leung Kai Wing, CACC 229/2016:

“26. If a defendant cannot show that a significant proportion of the drugs were for his own consumption, but the judge is willing to accept that an unquantifiable amount less than a significant proportion was for his own consumption, then that fact forms part of the background circumstances that a judge can take into account when determining his starting point. Whether this fact, together with the other facts and mitigating circumstances persuade a judge to depart from an arithmetically determined starting point will be a matter of sentencing discretion.”

15.  Ms Lau also cited a non-binding High Court sentencing case HKSAR v Chan Yun Kwong, HCCC 30/2017, where Campbell-Moffat J reduced the sentence by 2 months for the fact that a non-significant proportion of the drug(s)  was for the defendant’s self-consumption.

16.  The main mitigating factor is the early plea of guilty entitling Mr Chan to the full 1/3 discount.

17.  Ms Lau submitted, contrary to what Mr Chan said under caution, that he was not only to be rewarded with money ($3,000), but also with dangerous drug. Ms Lau pointed to the urine test result which was positive for cocaine.

18.  Ms Lau submitted that Mr Chan has constantly reflected on himself and recalled the past; that he completed short courses organized by the Hong Kong Christian Kun Sun Association Ltd (certificates submitted).

19.  Ms Lau submitted that Mr Chan does not want to waste time anymore and that he promises to stay away from all the bad peers and he will not re-offend.

20.  Wanting to stop others from acting like him, Mr Chan has actively contributed to Father Wotherspoon’s anti-drug campaign (Mr Chan’s Chinese letter as posted online submitted).

21.  Ms Lau referred to another non-binding High Court sentencing case HKSAR v Iis Nurtiwi, HCCC 287/2023, in which the deputy judge awarded a 2-month discount to a defendant for a similar contribution.

22.  Ms Lau urged the court to adopt a starting point of 45 months’ imprisonment.

23.  Ms Lau also urged the court to allow after the 1/3 discount another 2 months off for self-consumption and also another 3 months off for making a slight contribution to Father Wotherspoon’s anti-drug program.

24.  Ms Lau submitted a total of 4 mitigation letters written in Chinese respectively by Mr Chan himself, his father, his mother, and his elder paternal uncle.  The contents are generally that Mr Chan has reflected upon his misdeeds; that he was manipulated by the drug trafficker to traffic in drug so as to finance his heavy drug-related expenses; that he promises to reform himself and not to re-offend; that he is laboring under a shameful heart and a guilty feeling.  The letter writers all asked for a chance for reform for Mr Chan.  The parents and uncle asked for a lenient sentence for Mr Chan.

25.  Asked if Mr Chan would give evidence to support his claim that part of the cocaine seized was intended for his self-consumption, Ms Lau replied that her clear instruction was that he would not.

Sentence

26.  I have seen the pile of 16 photographs submitted by the prosecution. They added little to the Amended Summary of Facts.

27.  Trafficking in a dangerous drug is a serious offence and even for a first offender, a deterrent sentence is called for according to weight-related scales.

28.  I shall abide by the 6-step sentencing approach as set out in Herry Jane Yusuph (supra).

29.  The arithmetic starting point as per the Lau Tak Ming tariff is 46 months’ imprisonment.  I note the sentencing band within which the amount of drug in this case finds itself has not been disturbed by the recent Court of Appeal authority of HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138.

30.  I agree that Mr Chan played the role of a courier and that starting point could apply to him without enhancement.

31.  Mr Chan pleaded guilty in good time.  He shall be entitled to the full 1/3 sentencing discount.

32.  Although there was cocaine in his system upon arrest, there is no evidence that any part of the drug seized was intended for Mr Chan’s own consumption.  Therefore, there will be no sentence reduction on this score.

33.  Mr Chan contributed slightly to Father Wotherspoon’s anti-drug program by allowing his lengthy letter of regret (in Chinese)  to be posted on the relevant website.  I have read the letter in entirety.  I shall give Mr Chan an additional 2 months’ sentencing reduction after the 1/3 discount: Secretary for Justice v Pastana Carvalho Andreza Narely [2022] 3 HKLRD 727, 742, at para 36 considered.

34.  There are no other mitigating factors of weight that could justify another sentence reduction.  In this connection, a previous clear record counts for little in this type of offence.

35.  I am satisfied that the sentence thus resulting is fair, just and balanced having regard to the overall circumstances of the offence and the offender.

(Mr Chan, please stand)

36.  The sentence is 28 months and 20 days’ imprisonment.