HKSAR v. CHAN HOI WING

HCCC 494/2014

[2020] HKCFI 2807

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 494 OF 2014

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

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COURT: Defendant, the jury have found you guilty after trial of an offence of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. They have found that on 19 October 2012, at the Ground Floor of No. 61 Fu Tei Pai, Sha Tau Kok Road, Lung Yeuk Tau, Fanling, you unlawfully trafficked in 40.43 grammes of a crystalline solid containing 39.92 grammes of methamphetamine hydrochloride, 99.94 grammes of a mixture containing 25.41 grammes of heroin hydrochloride, five tablets containing 0.03 grammes of methamphetamine and 35 tablets containing 0.46 grammes of midazolam.

On the facts of this case, the police had entered the premises or the house at Fu Tei Pai on 19 October at about 4 am. When they entered the premises, they found you and another female in the premises. An officer had also seen you holding two bags which contained drugs. You threw one bag of drugs into a room and hid the other bag of drugs in the waist of your trousers.

Upon search of the premises, further drugs were found in another bag and devices for inhaling drugs were also found in the premises as well as an electronic scale and numerous empty resealable plastic transparent bags.

When you were arrested and cautioned for trafficking in dangerous drugs, you admitted that all the drugs were yours. You said it had nothing to do with the girl who was the other person in the house, and that you were just looking for some lunch, that is, you were going to make a living.

On the jury’s finding, you were clearly trafficking in these drugs, the quantity of which, as I have stated, are in the charge and the value in October 2012 was $121,933.

It was admitted at trial at that time, you were receiving comprehensive social security allowance. As for your personal background, you are born in 1975 and are aged 45. Mr Luk, your counsel, has said that regarding your background is what you have said in evidence, that is, you were educated up to Form 5, you have previously been married and have two children aged 24 and 18.

Your criminal record is admitted. You have a total of 10 previous convictions, eight of which are related to drugs, two of which are similar, that is, to this charge of -- that is trafficking in dangerous drugs. Mr Sham has already informed the court that in 2007, you were sentenced to 7 years’ imprisonment and in 2013, you were sentenced to 20 months’ imprisonment. Those two sentences were for trafficking in dangerous drugs.

We have heard in this trial that in regard to the 2013 conviction and sentence, that offence was committed in April 2012. However, upon arrest, you were granted bail and you absconded. You failed to surrender to the court. You were arrested for that 2013 case in the present case on 19 October. Therefore, you committed this present offence whilst on bail for the 2013 conviction.

Mr Luk has not put forward any mitigation on your behalf but concedes that there is an aggravating factor that is your similar previous conviction of trafficking and the fact that you have committed this offence whilst on bail.

Defendant, it would appear to me that since at least 2007, you have spent much of your time in custody. This is your third conviction for a similar offence of trafficking. I do consider this to be an aggravating factor. I also consider that you committing this offence whilst on bail for the trafficking offence in 2013 to be an aggravating factor. Because of this aggravating factor, I shall enhance the starting point to which I take.

Defendant, as Mr Luk rightly points out, for trafficking in dangerous drugs, the Court of Appeal has set down guidelines on sentence depending on the type of drug involved. In this case, defendant, you were trafficking in methamphetamine hydrochloride which is ‘Ice’, heroin and midazolam. The relevant authorities for ‘Ice’ is Tam Yi Chun and for heroin is Lau Tak Ming, and in following the guidelines there, I shall sentence you on that. I will take the combined approach to sentence you and also the conversion approach.

Defendant, for the total quantity of ‘Ice’ that you were trafficking in, it is, firstly, 39.92 grammes plus 0.03 grammes of ‘Ice’ which makes a total of 39.95 grammes. For that -- can I ask you to stand up, please? For that amount of ‘Ice’ that you have been convicted after trial, I take the starting point as 8 years and 9 months’ imprisonment.

For the heroin, you were trafficking in 25.41 grammes. The sentence after trial for trafficking in that amount of heroin would have attracted 6 years’ imprisonment. However, I am going to convert the heroin into ‘Ice’ and for that it would be approximately 8 grammes of ‘Ice’. Therefore, adding 8 grammes to 39.95 grammes totals 47.95 grammes of ‘Ice’ to which you were trafficking in, and in following the case of Tam Yi Chun, for that quantity of ‘Ice’, you should be sentenced to 9 years and 6 months’ imprisonment. As for the midazolam, given the very very small nominal amount, I shall not take that into account.

I have informed you that there are aggravating factors. At the time you committed this offence, I note that you only had one previous conviction of trafficking which was the 2007 offence but you committed this offence whilst on bail for the 2013 conviction and that was during the time, I note, when you had actually absconded. Given the fact of the previous similar conviction and the fact that you committed this offence whilst on bail, I enhance the 9 years 6 months by a further 6 months and you shall be sentenced to a total term of 10 years’ imprisonment.