HKSAR v. CHAN SIU HONG

DCCC 976/2018

[2023] HKDC 1486

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 976 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 (2^nd Charge), and a charge of failing to surrender to custody without reasonable cause, contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap 221 (3^rd Charge), and was so convicted upon agreement to a further re-amended Summary of Facts.

2.  As for the 1^st Charge, ie the charge of doing an act preparatory to or for the purpose of trafficking in a substance believed to be a dangerous drug, contrary to section 4(1)(c)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, the same is left on court file and not to be proceeded with without leave of the court.

Facts

2^nd Charge

3.  On 8 August 2018 at about 2:29 pm, police officers conducted an anti-narcotic operation at the subject premises which was a shop in a shopping mall.

4.  The police found the defendant inside the shop. During the search, they found in a black circular box on a table which contained a transparent resealable plastic bag containing 1.21 grammes of a crystalline solid containing 1.15 grammes of methamphetamine hydrochloride as well as 7 empty transparent resealable plastic bags.

5.  The police also found on the table, 2 transparent resealable plastic bags containing a total of 13 empty resealable plastic bags and an electronic scale.

6.  The estimated street value of the drugs seized was HK$644.

7.  Cash of HK$500 and a mobile phone were also found on the defendant. The defendant was arrested for trafficking in a dangerous drug. Under caution, he said that the “pork”, meaning the ICE, belonged to him and was for his own consumption.

8.  In a subsequent cautioned video-recorded interview, the defendant admitted that the resealable plastic bags and the electronic scale also belonged to him.

3^rd Charge

9.  On 7 March 2019, the defendant was granted bail by the District Court for the instant case until the first day of trial on 12 August 2019.

10.  One of the defendant’s bail conditions required him to report to police station but the defendant defaulted since 8 June 2019, and the defendant did not attend the hearing on 12 and 13 August 2019. As a result, a warrant of arrest was issued against him.

11.  On 25 December 2022, the defendant was arrested by the police. The defendant under caution said that he did not attend the trial because he wished to take care of his girlfriend who had psychiatric illnesses and he was worried of his own safety due to the social unrest which was taking place then.

Criminal Record

12.  The defendant had 10 previous record involving convictions of 11 charges, 3 of which are drug related. He was last sent to Drug Addiction Treatment Centre on 27 September 2018.

Mitigation

13.  The defendant is aged 38 and single. He suffers from gout and hypertension. He was born in Hong Kong and received education up to Form 1 level. His parents separated when he was 5 years old and he has been living with his father until recent years when his father moved into an elderly home. His mother resides with one of his siblings.

14.  The defendant had in the past worked as a construction worker and decoration worker. He used to contribute to his father. It was said that since the year 2017, with the help of his friend, the defendant started operating a sex toy shop at the offence location. He became unemployed later in the year 2019.

15.  It was also said that the defendant was a habitual user of ICE since the year 2012 and that he would share the drugs in question free of charge with his friend.

16.  Defence counsel conceded that under the sentencing guidelines established in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, trafficking 1.15 grammes of ICE would attract a sentencing starting point of approximately 3 years and 5.52 months’ imprisonment.

17.  Defence counsel submitted that half of the dangerous drugs was for the defendant’s own consumption. If the court accepts that was the case or a significant proportion of the drugs was intended for the defendant’s consumption, he asked the court to adopt a lower sentencing starting point for the offence.

18.  Defence counsel also submitted that the defendant had committed the 3^rd Charge because his then girlfriend was suffering from severe mental illness which requires his round the clock company and care. It was said that the condition of the girlfriend deteriorated in year 2019 and she finally committed suicide in November 2019, and that subsequent to which because of the pandemic, the defendant was worried that he would contract the highly contagious COVID when in custody if he was rearrested.

19.  Defence counsel submitted that the defendant has pleaded guilty at the first opportunity and he is entitled to the usual one-third sentencing discount.

Discussion

2^nd Charge

20.  On conviction upon indictment, the maximum sentence for the 2^nd Charge offence is a fine of HK$5 million and to imprisonment for life.

21.  As conceded by defence counsel, following the sentencing guideline in Tam Yi Chun case, the appropriate sentencing starting point for trafficking 1.15 grammes of ICE would be 41.52 months’ imprisonment.

22.  Defence counsel has originally stated that half of the drugs was for the defendant’s own consumption.  After this court has indicated during the hearing that the court was not persuaded then and would be willing to go through the Newton hearing, defence counsel submitted that the defendant would not be willing to proceed to the Newton hearing.

23.  Personal background of the defendant seldom affords the defendant a sentencing discount when faced with conviction of a serious charge such as trafficking in dangerous drugs.

24.  The defendant has 3 drug-related offence convictions in the past but none of which is similar to this charge.

25.  By reason of his guilty plea, he is entitled to a full one-third sentencing discount which brings the sentence to 27 months and 18 days’ imprisonment.

26.  As said earlier, the court is not persuaded in the circumstances of this case that the defendant had a significant proportion of drugs in question for his own consumption. Although the ICE seized was only 1.15 grammes, according to defence counsel, the defendant was unemployed in 2019. Further, during search of the shop, the police found numerous resealable plastic bags and electronic scale which were obviously used for packaging ICE for convenient supply to others, representing a packaging enterprise.

27.  The court accepts the defendant is a user of ICE, but in the circumstances of this case, the court finds that the defendant is essentially a trafficker. This court is therefore only willing to exercise its discretion and give the defendant 1 month and 18 days’ imprisonment sentencing discount by reason that he might take a very small proportion of drugs seized for his own consumption.

28.  Accordingly, the defendant is sentenced to 26 months’ imprisonment for the 2^nd Charge.

3^rd Charge

29.  On conviction upon indictment of this charge, a person is liable to a fine of any amount and to imprisonment for 12 months.

30.  The defendant was rearrested after not less than 3 years and 4 months.

31.  Explanation for the commission of the offence was far from reasonable, such as the defendant’s failure to report to police station or regarding his failure to surrender after the defendant’s girlfriend’s death.

32.  The court considers that the appropriate sentencing starting point is a period of 6 months’ imprisonment. The defendant has pleaded guilty and is therefore entitled to full one-third sentencing discount and is therefore sentenced to 4 months’ imprisonment for this charge.

Totality

33.  Nature of the 2^nd Charge and the 3^rd Charge is totally different. Having considered the totality principle, this court finds that a total sentence of 28 months’ imprisonment is just and proportionate to the defendant’s culpability in the whole case.

34.  In the circumstances, the court orders that 2 months of the sentence of the 3^rd Charge is to run consecutive to the sentence of the 2^nd Charge, the rest to run concurrently. The defendant is therefore sentenced to a total of 28 months’ imprisonment in this case.