HKSAR v. CHAN SAI PIU

DCCC 1309/2023

[2024] HKDC 1531

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1309 OF 2023

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REASONS FOR SENTENCE

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1.  Mr Chan pleaded guilty before me to two charges on a Charge Sheet as follows.

2.  Charge 1 is Possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on 5 September 2023, outside Yiu Tung House, Tung Tau (II)  Estate, No 183 Tung Tau Tsuen Road, Wong Tai Sin, Kowloon, in Hong Kong, had in his possession a dangerous drug, namely traces of a solid containing ketamine.

3.  Charge 2 is Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on 5 September 2023, on a private car bearing registration mark UX6098, near Lamppost No GF3798, Tung Kwong Road, Wong Tai Sin, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 7.55 grammes of a solid containing 5.69 grammes of cocaine and 3.48 grammes of a solid containing 2.83 grammes of ketamine.

Facts admitted by Mr Chan

4.  On 5 September 2023, Mr Chan was acting furtively near private car UX6098 parked near Lamppost No GF3798, Tung Kwong Road, Wong Tai Sin. Patrolling constable PW1 spotted him and followed him to the place outside Yiu Tung House, Tung Tau (II)  Estate, Wong Tai Sin, and there intercepted him. Upon body search, PW1 found in Mr Chan’s right front trousers’ pocket a HK$20 banknote folded into a packet containing some traces of a solid containing ketamine.

5.  Mr Chan was arrested for Possession of a dangerous drug.  Under caution, he stated that the packet contained ketamine for self-consumption.

6.  In Mr Chan’s left front trousers’ pocket, PW1 found the ignition key of UX6098 and 2 mobile phones.  Mr Chan told PW1 that UX6098 was his car.  Mr Chan was taken back to UX6098.  In the presence of Mr Chan, PW1 searched the car and found a black zipper bag underneath the carpet under the driver’s seat.  The back zipper bag was found to contain the following items:-

(a)  14 resealable plastic bags containing a total of 1.98 grammes of a solid containing 1.83 gramnmes of cocaine (“E2”);

(b)  40 resealable plastic bags containing a total of 5.57 grammes of a solid containing 3.86 grammes of cocaine (“E3”); and

(c)  6 resealable plastic bags containing a total of 3.48 grammes of a solid containing 2.83 grammes of ketamine (“E4”).

7.  In the storage area at the driver’s door, PW1 found 2 zipper bags containing banknotes worth HK$14,450 and HK$11,810 respectively.  A mobile phone was also found at the driver’s seat.

8.  Mr Chan was arrested for Trafficking in dangerous drugs.  Under caution, he stated that he was forced to do so because he was in debt.  In Mr Chan’s possession were found two other mobile phones.

9.  Mr Chan was interviewed on 6 September 2023 under cautioned VRI during which he admitted the HK$20 banknote containing ketamine was purchased by him for HK$350 on the previous day for self-consumption.

10.  The street value of E2 and E3 was $8,313.  The street value of E4 was $1,698.

Criminal record

11.  Mr Chan has 14 previous convictions 3 of which were for possession of dangerous drug (“PDD”).  The last PDD conviction was dealt with by way of his being sentenced to DATC on 25 September 2023.

Antecedents

12.  Mr Chan is aged 38 (37 at the time of the offences), educated to F3, was a transportation worker.  Mr Chan is married and resided with his family in public housing in Tin Shui Wai.

Mitigation

13.  Mr Enzo Chow of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chan.  The following is a summary of the mitigation submissions.

14.  Mr Chan is married.  His wife works as a sales officer and earns around $25,000 per month.  Mr Chan has a stepson studying P4.

15.  Mr Chan’s parents are both close to 70 years of age and unemployed; they resided with Mr Chan and were dependent on him financially.

16.  Mr Wong’s mother and wife are in court to give their support.

17.  Mr Chan worked as a cook until 2018.  Since 2019, he worked as a delivery driver for a logistics company and used to earn $25,000 to $30,000 monthly until the outbreak of COVID which had the effect of reducing the number of jobs and consequently his income.  Before COVID, he was able to pay around $18,000 to his wife and mother for household expenses; but since then, he gradually became unable to pay such an amount.

18.  In January 2023, he borrowed $100,000 from a colleague.  Because of financial pressure, he resumed consumption of ketamine.

19.  In around April 2023, Mr Chan was arrested for possession of dangerous drugs.  He was put on bail.  His pregnant wife learned of the incident and became sad.  In May 2023, in a medical checkup, it was discovered that the fetus was stillborn thus resulting in an abortion.  Mrs Chan began to suffer from depressive disorder.

20.  The lender having realized Mr Chan would likely receive a custodial sentence for the earlier PDD case demanded immediate repayment of $20,000 being part of the outstanding sum.  Having nowhere else to get the needed money, Mr Chan was lured into delivering dangerous drugs.  In the meantime, Mr Chan’s family was being harassed including by means of having the door of their home splashed with red paint.

21.  Eventually, Mr Chan was sentenced to DATC on 25 September 2023 for the earlier case.

22.  Mr Chan has a number of previous criminal convictions but none of them was related to trafficking.

23.  In relation to Charge 1, there is no tariff for possession of dangerous drugs.  Indeed, there were only traces of solid containing ketamine.

24.  However, it is acknowledged that Mr Chan has previous convictions for possession of dangerous drugs: such is an aggravating factor for enhancing the sentence on Charge 1.

25.  In relation to Charge 2, the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 has summarized the six steps for determining the sentence in trafficking in dangerous drugs cases.

26.  For trafficking in up to 10 grammes of cocaine, the sentence should be 2 to 5 years’ imprisonment: The Queen v Lau Tak Ming [1990] 2 HKLR 370 and Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.  The starting point for trafficking in 5.69 grammes of cocaine should result in a sentence of 44.3 months’ imprisonment.

27.  For trafficking in over 1 gramme to 10 grammes of ketamine, the sentence should be 2 to 4 years’ imprisonment: Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, at para 95.  The starting point for trafficking in 2.83 grammes of ketamine should be 28.88 months’ imprisonment.

28.  Charge 2 involves the trafficking in two types of dangerous drug.

29.  Using the absurdity test for cross-checking, the total quantity of dangerous drugs being 8.52 grammes and the most serious drug being cocaine, the sentence would have been around 54.6 months’ imprisonment.

30.  When the conversion test is used for cross-checking, the sentence for 2.83 grammes of ketamine would be equivalent to the sentence for 1.35 grammes of cocaine.  In the event of trafficking in 7.04 (5.69 + 1.35)  grammes of cocaine, the sentence should be 49.5 months’ imprisonment.  Conversely, the sentence for 5.69 grammes of cocaine would be equivalent to the sentence for 8.59 grammes of ketamine.  In the event of trafficking in 11.42 (2.83 + 8.59)  grammes of ketamine, the sentence should be around 48.9 months’ imprisonment.

31.  When the ratio test is used as a means for cross-checking, for the ratio of cocaine in the total drug amount, the sentence would be 36.48 months; for the ratio of ketamine in the total drug amount, the sentence would be 14.65 months.  Hence, under the ratio test, the total sentence would be 51.13 months.

32.  In the present case, there is no international element.

33.  It is submitted that Mr Chan was a mere courier delivering dangerous drugs.

34.  Mr Chow submitted on behalf of Mr Chan a total of 4 mitigation letters (all in Chinese)  written respectively by Mr Chan himself, his wife, his stepson, and his employer.  The contents are generally that Mr Chan feels regretful and promises to change his previous ways and to never commit an offence again; that his wife has now settled all the outstanding debts for Mr Chan such that he can restart his life on release; that Mr Chan is an efficient, hardworking, responsible and upwardly mobile man who took care of his family; that Mr Chan’s employer is willing to re-employ him after his release.  All the letter writers asked for a lenient sentence for Mr Chan so he may turn over a new leaf.

35.  Upon enquiry by the court relating to the claim that Mr Chan was a mere courier of dangerous drugs, after taking instructions, Mr Chow indicated that Mr Chan would not be giving evidence himself, nor would he call any witnesses, to show the origin of the large amount of cash found in the car, which issue is ultimately related to his said claim.

Sentence

36.  Trafficking in a dangerous drug is always a serious offence and it is made more serious when more than one type of drug are involved.

37.  The various figures worked out by Mr Chow under the various cross-checking tests more or less (though not exactly)  coincide with my own. The differences are insignificant.  I shall adopt his figures.

38.  The individual approach of sentencing by adding the two starting points for the two drugs respectively is obviously disproportionately harsh.  I will adopt the combined approach of sentencing.

39.  I have had regard to the authorities of HKSAR v Islam SM Majharul [2020] 3 HKLRD 146 and HKSAR v Herry Jane Yusuph (supra) when sentencing Mr Chan on Charge 2.

40.  Mr Chan committed the two offences in this case whilst on bail for the earlier case of PDD.  This is an aggravating factor.

41.  The fact that Mr Chan trafficked in two different types of serious drug at the same time is another aggravating factor: Islam SM Majharul (supra) at 157, para 27(4).

42.  For Charge 2, I shall adopt in the case of Mr Chan an initial starting point of 49 months’ imprisonment.  I do not accept Mr Chan was merely a courier because that could not explain the presence of the large amount of cash of $26,260 in the car.  The evidence overwhelmingly shows that Mr Chan was an actual trafficker of dangerous drugs on the day of arrest.  What is more, he used his own car for that purpose.

43.  For his higher role and culpability, I shall have to add 3 months to the starting point.

44.  For the two aggravating factors identified above, I shall add a total of 5 extra months to the starting point.

45.  The resulting starting point of 57 months is a high one and is 16% more than the initial starting point.  For this reason, I have determined that whatever sentence I shall impose for Charge 1, I shall make the two sentences run concurrently with one another.

46.  For Charge 1, given the ketamine possessed of was minimal, I shall adopt a notional starting point of 3 months’ imprisonment.  The first aggravating factor identified above has been taken into account.  Although Mr Chan is a repeated offender of PDD offence, I shall not further enhance the starting point because the first two PDD offences in his record were dated back to 2007 and 2010 respectively.

47.  Mr Chan pleaded guilty to the charges in good time.  He shall be entitled to the full 1/3 sentencing discount on each charge.  There are no other mitigating factors of weight to justify another sentence reduction.

48.  As indicated, I am minded to order concurrent sentences.

49.  Taking one step back, I look at the overall sentence to see if it is a fair, just and balanced sentence in all the circumstances of the offences and the offender.  These circumstances include the use of a car to facilitate actual trafficking in a total of 60 plastic bags of two types of drug.  I am confident that the overall sentence is not excessive and is a fair sentence on Mr Chan.

(Mr Chan, please stand)

50.  On Charge 1, the sentence is 2 months’ imprisonment.

51.  On Charge 2, the sentence is 38 months’ imprisonment.

52.  I order that the two sentences are to run concurrently with one another.