HKSAR v. CHAN SIU TAT, PLUES

HCCC 361/2017

[2018] HKCFI 443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 361 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

He was intercepted by police officers whilst he was returning to his residence. Nine packets of drugs were found from his waist bag. Inside the flat were other paraphernalia consistent with both trafficking and consumption of drugs, namely, an electronic scale, 18 transparent resealable plastic bags, one broken glass tube with a bulb shape and containing traces of a solid containing ‘Ice’ and one glass bottle with two openings on the top containing traces of a solid containing ‘Ice’.

Upon analysis, the drugs were found to be 24.61 grammes of a crystalline solid containing 23.76 grammes of methamphetamine hydrochloride.

Under caution, the defendant said the drugs were for his own consumption and the electronic scale was for weighing the drugs, and the plastic bags were for measuring the amount of drugs to be taken to avoid overdose.

He now admits that he was unlawfully trafficking in those drugs, and the estimated retail value of those drugs at the time of the offence was $8,529.

He is now aged 43. He has seven previous convictions. In 1998, for an offence of possession of dangerous drugs, he was sentenced to 4 months’ imprisonment. His last conviction was in year 2000, which is unrelated to drugs, for which he was imprisoned for 6 months.

By way of mitigation, I was told that after his last discharge from prison he had tried to keep himself away from troubles and managed to do so until he had injured himself at work. It was then that he resorted to using ‘Ice’ as a painkiller. Counsel asked me to temper justice with mercy as this defendant has an aged father at the age of 65.

In sentencing the defendant, I have taken into account his plea, the nature of the drugs, the relevant sentencing tariff and mitigation forwarded by counsel on his behalf.

Applying the tariff in Tam Yi Chun, trafficking between 10 to 70 grammes of ‘Ice’ attracts a starting point between 7 to 11 years. The present case concerns 23.76 grammes of ‘Ice’ and I adopt a starting point of 8 years.

Mr So asked me to take account of the fact that the defendant was an addict at the time of the offence, taking ‘Ice’ to relieve his pain, and that there were paraphernalia consistent with the consumption of ‘Ice’ in his own flat and his urine test report whilst in remand showed positive of ‘Ice’. However, the fact remains, in accordance with the case of Wong Suet Hau, the court has to be satisfied whether a significant and discernible quantity of the drugs were for the defendant’s own consumption, and it is accepted by Mr So that only a small portion of the drugs were for his own consumption.

Whilst I do accept that some of the drugs, a very tiny amount, might be for his own consumption, I do not accept that any significant or readily quantifiable division was for his own consumption to warrant a reduction from the starting point. According to cases like Chow Chun Sang and Cheuk Kin Man, a significant amount has to be at least more than half or even two-thirds.

I see nothing in this case which would warrant any further discount from the one-third discount for his plea. He is sentenced to 64 months’ imprisonment.