HKSAR v. CHAN TIN LONG

DCCC 1303/2024

[2025] HKDC 1159

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1303 OF 2024

----------------------------

----------------------------

-----------------------------------------

REASONS FOR SENTENCE

-----------------------------------------

1.  Mr Chan pleaded guilty before me to one charge of Trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Particulars are that he, on 21 June 2024, outside Sai Yee Street Substation, Sai Yee Street, Mong Kok, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 5.04 grammes of a solid containing 4.18 grammes of ketamine, and 2.21 grammes of a solid containing 1.79 grammes of cocaine.

Facts admitted by Mr Chan

2.  On 21 June 2024, at about 0118 hours, a taxi TU3821 entered Sai Yee Street from Prince Edward Road West.  The taxi stopped outside Sai Yee Street Substation at about 50 metres in front of a Police Snap Check situate near the junction with Bute Street.

3.  Feeling suspicious, police officers intercepted the Taxi.  Mr Chan, a passenger seated at the rear, was asked to alight for a body search.  Mr Chan told the police he had something beneath his underpants and asked for a chance.  Upon body search, police found an orange bag beneath Mr Chan’s underpants.  Inside the orange bag, the police found:

(a) 8 stapled plastic bags containing a total of 2.21 grammes of a solid containing 1.79 grammes of cocaine (E1);

(b) 5 stapled plastic bags containing a total of 3.13 grammes of a solid containing 2.60 grammes of ketamine (E2); and

(c) 3 stapled plastic bags containing a total of 1.91 grammes of a solid containing 1.58 grammes of ketamine (E3).

4.  Mr Chan was arrested for “Trafficking in dangerous drugs”.  Under caution, Mr Chan said the drugs were for his own consumption.  One mobile phone and cash of $17,863.50 were seized from Mr Chan.

5.  The estimated street value of E1 was about $2,124; that of E2-3 was about $2,073.

6.  Mr Chan now admits he had in his possession E1-3 for the purpose of unlawful trafficking.

Criminal record

7.  Mr Chan has a previous clear record.

Antecedents

8.  Mr Chan is aged almost 24 (almost 23 at the time of the offence), educated to Yi Jin Diploma level, unemployed.  Mr Chan used to live with his father and paternal grandmother.

Mitigation

9.  Ms Yasmine Zahir of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chan.  The following is a summary of the mitigation submissions.

10.  Mr Chan’s mother, a social worker, his two cousins, and friends are in court to give him support.

11.  Mr Chan has been unemployed since July 2023.  When he was working as a salesperson, he earned about $22,000 per month.  Prior to detention, he was living with his father (52) and paternal grandmother.

12.  Mr Chan has reflected upon his past behavior.  Since being on remand, his divorced mother regularly came to visit him.

13.  The biggest mitigating factor is his early plea of guilty.  Mr Chan is remorseful and asks for a lenient sentence.

14.  Sentencing guidelines for trafficking in 1 to 10 grammes of ketamine would warrant a sentence of 2 to 4 years: HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1, 29, at para 95.

15.  Sentencing guidelines for trafficking in up to 10 grammes of cocaine would warrant a sentence of 2 to 5 years: HKSAR v Huang Ruifang [2025] 2 HKLRD 138, 164, at para 62.

16.  The total weight of all narcotics is 5.97 grammes.

17.  For cocaine, arithmetical starting point would be 30.444 months.  For ketamine, arithmetical starting point would be 32.479 months.

18.  Ms Zahir obtained the following results from the cross-checking tests:

(a) Conversion test: 4.146 grammes of cocaine – 38.9 months; 7.597 grammes of ketamine – 41.59 months;

(b) Ratio test: 39.724 months; and

(c) Absurdity test: 5.97 grammes of cocaine – 45.492 months; 5.97 grammes of ketamine – 37.253 months.

19.  The fact that there is more than one drug involved is an aggravating factor.  However, Ms Zahir prayed in aid the fact Mr Chan is of clear record and therefore invited the court to adopt the conversion test result for cocaine (being more potent drug).

20.  Ms Zahir submitted that the cocaine found on Mr Chan was for his own consumption.  In light of the considerations identified in HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69, 79, the court is invited to consider the following:

(a) The quantity of drugs involved in the present case;

(b) The drugs were found on Mr Chan, as opposed to being found at a residential address or in an apartment rented in Mr Chan’s name;

(c) Mr Chan mentioned under caution at the scene of arrest that the drugs were for his own self-consumption; and

(d) Mr Chan himself is a habitual cocaine and cannabis drug user: this is supported by the urine test report, which shows that he was tested positive for cocaine and cannabis upon being placed on remand.

21.  Ms Zahir submitted that Mr Chan first came into contact with drugs in 2023 when under the influence of bad peers; that Mr Chan has learnt a heavy lesson from the present case and promises to distance himself from his peers.

22.  Ms Zahir invites the court to accept that part of the drugs involved were for Mr Chan’s self-consumption, thereby being a mitigating factor as supported in the case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, 1125, at para 14.

23.  Ms Zahir submitted on behalf of Mr Chan a total of three mitigation letters either written in English or with English translation.  The authors were Mr Chan himself, his mother and a social worker.  The contents are generally that Mr Chan committed the offence to support his expenses including that spent on relieving his drug addiction; that he is regretful and wishes to start afresh.  The letter writers all asked for a lenient sentence for Mr Chan.

24.  Asked what role Mr Chan was playing on the day in question, Ms Zahir conceded that Mr Chan was an actual trafficker.

25.  Asked whether Mr Chan will give evidence to support his claim of self-consumption of (part of) the cocaine seized, Ms Zahir finally replied yes after an earlier shifting of positions.

Sentence

26.  My calculation of the results of the three cross-checking tests bears similar results to those worked out by Ms Zahir.  I shall adopt her figures.

27.  I shall adopt the result of the ratio test ie 40 months as my basic starting point.

28.  I will abide by the six-step sentencing approach as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

29.  I need first to assess the role played by Mr Chan in the drug trafficking activity.  I note that the drugs seized were packaged in separate stapled plastic bags.  In other words, they were not in bulk wholesale form but were in retail form ready to be sold to individual buyers.  What’s more, Mr Chan had a large amount of cash ($17,863.50) on him.  Given his self-confessed impoverished state, he should not be in possession of this amount of money in the small hours of the day.

30.  I am therefore of the view he was an actual trafficker on the day in question.  For this reason, the starting point needs to be enhanced.

31.  Next, because of the fact of more than one type of drug involved, the starting point needs to be further enhanced.

32.  For these two factors, I will enhance the starting point by 5 months to reach a final starting point (ie notional sentence after trial) of 45 months’ imprisonment.

33.  Next, I deal with Mr Chan’s claim of self-consumption.

34.  With respect to Ms Zahir, for self-consumption to be a mitigating factor calling for a reduction of 10 to 25% of the basic starting point as mentioned in Chow Chun Sang, a significant part/proportion of the drug seized has to be intended for the defendant’s own consumption.  Nothing short of that will do.  That has been made clear as long ago as in HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572 at para 27, and reiterated in HKSAR v Liu Ming Sze [2017] 1 HKLRD 297 at para 26.  A sentencing court however retains a discretion to award a small discount even where that high threshold has not been met; but one must remember this is not as of right.

35.  Mr Chan has given evidence and been cross-examined by the prosecution. Mr Chan said in evidence the whole, not just part, of the cocaine seized was for his own consumption.  On the day in question, he was not departing from nor was he heading home which was in Tuen Mun.  He was stopped and arrested in Mong Kok.  He agreed he was heading towards Tseung Kwan O before interception.  He could not remember where he was departing from; nor could he remember the source of the dangerous drugs on him.  He agreed he lied to the police on arrest by saying all the drugs were for his own consumption; but he was nervous at the time.  He had no specific reason not to separate the two different types of dangerous drug despite the fact that the cocaine was wholly for his own consumption.

36.  In this exercise to determine the issue of self-consumption, the defence bears the burden of proof on the balance of probabilities.  Having heard submissions and considered the evidence, I do not believe Mr Chan’s evidence. I do not find his evidence that he was carrying this amount of cocaine said to be for his own consumption with the ketamine he admitted to be for sale together reasonable.  Furthermore, they were all placed together in an orange bag which tended to suggest both were intended for the same purpose ie for sale.  I reject Mr Chan’s evidence entirely.

37.  Are there other pieces of evidence pointing towards self-consumption? Although Mr Chan was tested positive for cocaine on remand, that only shows that he was a cocaine user.  There is no evidence that I accept which could show any part (let alone a significant part) of the seized cocaine was for his own consumption.  Yes, he said under caution at the arrest scene that the drugs were for his own consumption; but that was said in the context of denying trafficking when being arrested for trafficking in all of the dangerous drugs. He has since refuted that exculpatory remark by pleading guilty to trafficking.  I will not therefore give any weight to what he said under those circumstances.

38.  I reject Mr Chan’s claim of self-consumption.

39.  Mr Chan pleaded guilty in good time, earning for himself the full 1/3 sentencing discount.  There are no other mitigating factors that I can see which could reduce his sentence further.  In this connection, I will simply add that a clear record counts for little in this type of offence.

40.  Before leaving the matter, I step back to see if the sentence thus resulting is one that is fair, just and balanced having regard to the overall circumstances of the offence and the offender.  I have come to the conclusion this is the case.

(Mr Chan, please stand)

41.  The sentence is 30 months’ imprisonment.