HKSAR v. CHAN CHI CHEONG

DCCC 17/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 17 OF 2016

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REASONS FOR SENTENCE

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INTRODUCTION

1.  Upon his arraignment before this court on 28 April 2016, the defendant entered a plea of guilty to, and was accordingly convicted of, one charge of trafficking in a dangerous drug, preferred against him under section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (the first charge)  and one charge of possession of a dangerous drug, laid under section 8(1)(a) and (2) of the Ordinance (the second charge).

FACTS

2.  On the evening of 30 September 2015, a team of police officers executed a search warrant on Room 305, 3^rd floor, Sincere Western House, Nos.34-42 Davis Street, Sai Wan, Hong Kong.  The defendant’s mother assisted them to enter the flat.  They went in the bedroom and found the defendant there.  On a make-up stool in the middle of the bedroom the police found a bag containing 11 small plastic bags, ten of which contained what was subsequently found to be 60.4 grammes of a powder containing 46.3 grammes of ketamine (the first charge), while the remaining one contained what was later determined to be 0.54 grammes of a crystalline solid containing 0.53 grammes of methamphetamine hydrochloride, commonly known as “ice” (the second charge).  The police found also a hookah containing a fluid later found to have traces of “ice” in it.  In addition, a pair of scissors, three lighters, and a metal clamp were found in the bedroom. 

3.  The defendant was arrested for the offence of trafficking in a dangerous drug.  He had the ketamine and the “ice”, not for trafficking, he said under caution, but for self-use.  In a subsequent video-recorded interview, he said he had purchased the dangerous drugs concerned for $3,000; he used the hookah for the consumption of “ice” and an aluminum foil to sniff the ketamine; and he had been taking dangerous drugs for over ten years.  According to the prosecution, the retail price for the ketamine seized in this case was $7,671.

MITIGATION

4.  The defendant was born in Hong Kong in August 1970 and is now 45 years old.  He has received education up to Form Three level and has worked as a cleaner.  He has six criminal records involving nine offences and has been sent twice to a drug addiction treatment centre, but he denies in his Antecedent Statement to have any drug habits. 

5.  In his plea in mitigation, Mr Chase Pun appearing for the defendant supplies the court with further background information.  A divorcee with a nine-year-old daughter, the defendant has been working as a casual cleaner, making about $6,000 to $8,000 a month.  Due to his remand in custody since his arrest last year, the defendant is no longer a drug-dependant. 

6.  In essence, Mr Pun advances two principal grounds of mitigation: first, of the ketamine stipulated in the first charge of trafficking, the defendant has had the intention of consuming half of it, and secondly, the sentence for the second charge of possession of a dangerous drug should run wholly concurrently with the sentence for the trafficking offence in the first charge.

7.  With regard to the issue of partial consumption of the ketamine seized, Mr Pun refers to the case of HKSAR v Wong Suet Hau & anor[1] in which the Court of Appeal articulated a total of eight factors for the consideration of the sentencing court in determining the portion of dangerous drugs for self-use.  Applying the principle propounded in HKSAR v Wong Suet Hau & anor[2], Mr Pun stresses that the defendant has been a drug addict for a long time and has been sent to a drug addiction treatment centre on two occasions – but he has never been convicted of any trafficking offences; he has the financial means to purchase dangerous drugs; he has purchased the ketamine in bulk to take advantage of a price discount; the ketamine was all seized from his residence; and he has given the immediate response upon arrest that he has had the dangerous drugs for his own consumption.  The defendant’s case is, according to Mr Pun’s instructions, that he has had the intention to consume half of the ketamine, ie., around 23 grammes, in terms of pure narcotic.  On that basis, Mr Pun seeks a reduction in sentence of 10% to 25% (see HKSAR v Chow Chun Sang[3], HKSAR v Cheuk Kin Man[4], HKSAR v Law Num Chun[5], and HKSAR v Tsang Chung Keung[6]).

8.  Mr Liu, counsel-on-fiat, does not accept that the defendant has had a significant portion of the ketamine for his own use.  He relies on the case of HKSAR v Ng Wing Yi[7], in which the Court of Appeal recorded:

“7. The evidence was … that the normal daily dosage for an addict was between 1 to 2 grammes of ketamine although there have been reported cases of abusers taking as much as 6 grammes per day. Some addicts will buy in bulk to receive a discount but, according to this testimony, experience suggests that addicts usually buy in quantities sufficient for one to two days consumption.”

9.  Next, Mr Liu invites the court to consider the issue of latent risk inherent in the portion of ketamine the defendant alleges he has had for self-use.  Mr Liu refers the court to HKSAR v Wong Suet Hau & anor[8], where the Court of Appeal said:

34. Arising from these considerations:

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(4) Where it is accepted that a significant proportion of the drugs were for the defendant’s own consumption, it is unnecessary, save in the most exceptional case where the division is readily quantifiable, for the sentencing judge to specify the relative amounts or proportions, except perhaps in the very broadest of terms. In such circumstances the court should so adjust sentence as to reflect the fact that not all the drugs were for trafficking. However in doing so, the judge should keep well in mind:

(i) the fact that possession of dangerous drugs itself carries a term of imprisonment;

(ii) the requirement to enhance sentence for simple possession of drugs to reflect, where appropriate, the ‘latent risk’ factor (see: HKSAR v Mok Cho-tik [2001] 1 HKC 261) which takes into account the risk that some of the drugs intended for self-consumption may nevertheless find their way into the hands of others.

An application of considerations (i) and (ii) may well offset much of the practical value of the mitigation, particularly with certain dangerous drugs which are commonly used amongst friends at social functions, including ice (see: HKSAR v Lam Wai-ip CACC 214/1997, unreported) and ecstacy (see: HKSAR v Lee Tak-kwan [1998] 2 HKC 371 at 376).

10.  With respect to the issue of a concurrent sentence for the two offences, Mr Pun relies principally on HKSAR v Touray Edrisa[9]. There, the Court of Appeal said:

61. In any event, the judge fell into error in determining that, given the offence of unlawful possession was different in nature to that of unlawful trafficking in a dangerous drug, their separate treatment required a part of the sentence imposed for unlawful possession of the dangerous drug to be consecutive to that imposed in respect of the unlawful trafficking. It is to be noted that in cases of multiple unlawful trafficking in dangerous drugs, that are connected closely in time and factually, this Court has said that it is appropriate for the sentencing judge to have regard to the overall quantity of the narcotic (see HKSAR v Chan Pui Chi [1999] 2 HKLRD 830). In cases where there is a great disparity in the volume of the narcotic between one offence and another it will be appropriate to impose concurrent sentences.

11.  In addition, Mr Pun mentions also the cases of HKSAR v Lo Chung Yin[10], and HKSAR v Chiu Hoi Yan[11].

CONSIDERATION

12.  The Court of Appeal in SJ v Hii Siew Cheng[12] held that the appropriate sentence, after trial, for trafficking in 10 to 50 grammes of ketamine should be four to six years’ imprisonment.  In the present case, Mr Pun agrees that for the quantity of ketamine concerned, a starting point of five years and nine months’ imprisonment would be appropriate; the court shall adopt this as the starting point for the first charge.  The bone of contention in respect of the trafficking charge centres about self-use as a ground of mitigation.

13.  Mr Pun indicates clearly that he seeks not a Newton’s enquiry.  In this regard, he relies specifically on HKSAR v Wong Suet Hau & anor[13], where the Court of Appeal held that in most cases, a Newton’s enquiry is unnecessary.  What Mr Pun asks for, in essence, is a specific finding of fact that the defendant has had some 23 grammes of pure ketamine for his own consumption.  On this issue, it is the court’s view that the evidence adduced in HKSAR v Ng Wing Yi[14] does not appear to lend support to Mr Pun’s assertion from the Bar.  In any event, as is rightly pointed out by Mr Liu, the latent risk inherent in the possession of well over 20 grammes of pure ketamine for self-use (even if accepted by the court) cannot be dismissed. 

14.  In the case of HKSAR v Tsang Chung Keung[15], the defendant was convicted of trafficking in 6.33 grammes of “ice”, half of which was found by the trial judge to have been intended for self-use.  The Court of Appeal in granting the defendant an 18% reduction in sentence on the ground of partial consumption said:

17. In Chow Chun Sang (ibid), Yeung VP had the following observation (at p 1126):

“19. We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on the circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organised and premeditated, and the background and criminal record of the defendant ….

20. As pointed out by the Judge, possession of ice for personal consumption is also an offence itself. Furthermore, we must not overlook the latent risk that the portion of the drug intended for the appellant’s own consumption may be given or sent out to others.

21. In HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, 80E, this Court also emphasised that the gravity of trafficking is not mitigated in those cases where the trafficker is trafficking in order to fund drugs intended to feed his own addiction.”

18. Having regard to all the circumstances of the present case, and to give effect to the judge’s finding that half the drug involved was for self-consumption, we think a discount of 18% would be appropriate from a starting point of 5 years and 6 months. The resulting sentence (4 years and 6 month) will then be further reduced by one-third to take account of the guilty plea thus giving a final sentence of 3 years’ imprisonment.

15.  In all the circumstances of the present case, the court is unable to accept that the defendant has had half of the ketamine for his own use.  The facts to which he agrees do not reveal seizure by the police of any aluminum foils in the flat.  Considering the evidence adduced in HKSAR v Ng Wing Yi[16]on the average daily consumption of ketamine, and in the absence of any evidence to the contrary, the court is not at all satisfied that a significant portion of the ketamine seized in the defendant’s bedroom has been designated for self-consumption. In light of all the factors identified by Mr Pun, factors falling within the proper scope of the court’s consideration as required by HKSAR v Wong Suet Hau & anor[17], and having regard to the latent risk factor, the court is prepared to grant the defendant around 15% reduction in sentence on the ground of partial consumption, thus bringing the starting point down from 69 months’ imprisonment to 58.6 months.  The defendant is entitled to one-third discount for his guilty plea; the final sentence for the first charge is therefore one of 39 months’ imprisonment.

16.  As to the second charge, having regard to the quantity of “ice” concerned and in view of the defendant’s criminal records and his long-term drug dependency, the appropriate starting point should be one of nine months’ imprisonment.  He is likewise entitled to one-third discount for pleading guilty to the offence; the final sentence for the second charge is one of six months’ imprisonment.

17.  On the issue of a concurrent sentence, in whole or in part, for the two offences, it appears to the court that underlying all the cases relied upon by Mr Pun is a collected, disciplined assessment – in the exercise of the court’s discretion – of an offender’s overall criminality as being the over-arching principle in sentencing cases involving multiple offences.  It is the court’s view that in all the circumstances of this case, a concurrent sentence of three years and three months’ imprisonment is adequate to reflect the defendant’s overall culpability in his crime.  Applying the principle of totality, it is ordered that the two sentences do run concurrently. 

CONCLUSION

18.  For the offences in the first and second charges of which he stands convicted, the defendant is sentenced to a term of imprisonment of three years and three months.