HKSAR V CHAN HEI LAM

DCCC 197/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 197 OF 2013

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REASONS FOR SENTENCE

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Overview

1.  The defendant is convicted on his own plea of two counts of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and one count of “Resisting police officers in the execution of their duties”, contrary to section 36(b) of the Offences against the Persons Ordinance, Cap 212.

The Facts

Charge 1

2.  The facts to which the defendant has admitted reveal that at about 1:20 am on 27 October 2012, PW1, an undercover officer, was approached by a female who offered to sell “ice” at a price of HK$500 in a pub in Wanchai.  PW1 agreed and was asked to wait at a nearby minibus stop for the transaction.  At about 1:40 am, the defendant appeared at the minibus stop and sold two plastic bags containing 0.21 gramme of “ice” to PW1.  The estimated street value is HK$157.

3.  On 10 November 2012, PW1 together with PW2, another undercover officer, met the defendant in Wanchai.  The defendant gave them his phone number and asked them to call him if they wanted to buy dangerous drugs.

Charge 2

4.  On 8 December 2012, PW2 called the defendant.  During the conversation, the defendant offered to sell “ice” at HK$500 per stroke and cocaine at HK$600 per droplet.  PW2 agreed to buy two strokes of “ice” and two droplets of cocaine.  After a while, the defendant called PW2 asking her to buy more dangerous drugs and offered to sell 15 strokes of “ice” and 15 droplets of cocaine at a discounted price of HK$14,000.  PW2 agreed and arranged to meet him up outside a restaurant in Lan Kwai Fong.

5.  At 9:55 pm on the same day, PW1 and PW2 met the defendant who told them another person would deliver the drugs to them.  After waiting for about 15 minutes, an unknown man arrived and gave PW2 a paper bag containing 25 plastic bags of dangerous drugs.  PW2 gave HK$14,000 marked money to the defendant.  Later those bags are confirmed to contain 1.22 grammes of cocaine and 1.16 grammes of “ice” which valued at HK$2,094 and HK$871 respectively.

Charge 3

6.  After the transaction, the police operation turned overt and the defendant was intercepted by a team of police officers.  At the time of interception, the defendant pushed DSGT 53571 and DPC 3376 away and fled.  When officers were trying to subdue him, he put up struggle during which he bit PC 3732 at his thigh.  The defendant was eventually arrested and the marked money was recovered from him. At the scene and a subsequent video-recorded interview, he under caution admitted the offences and claimed that he received about HK$10,000 as reward for trafficking.

Mitigation

7.  The defendant is now 26 years of age, single.  He has a son now aged 8 who was born out of wedlock and is living apart.  The defendant was educated up to Form 3.  Prior to arrest, he worked as a casual transportation worker earning about HK$8,000 each month and would financially render support to his son.  He is not a drug addict.  It is submitted that he committed the trafficking offences because of financial difficulties.

8.  In his letter, the defendant states that he is now very remorseful.  Also in a letter written by Mr Cheng, a pastor of Christian New Life Association, it is believed that the defendant has deep reflection of his wrongdoings and the desire to reform.

9.  He has 17 previous criminal convictions, none of which is drug-related but 6 of which are violence-related.  He was discharged from prison on 7 July 2012 but in just about three months’ time he committed Charge 1.

Sentence

10.  In the present case, 0.21 gramme of “ice” is involved in Charge 1 and two different types of dangerous drugs namely 1.22 grammes of cocaine and 1.16 grammes of “ice” are involved in Charge 2.

11.  Sentencing tariffs, though not strait-jackets, for trafficking in “ice” and cocaine have been laid down by the Court of Appeal.  For trafficking of “ice”, where the narcotic content is up to 10 grammes, the starting point is 3 to 7 years’ imprisonment[1]. For trafficking of up to 10 grammes of cocaine, the starting point is 2 to 5 years’ imprisonment[2].

12.  In HKSAR v Lui WaiKamCACC 400/ 2009 and HKSAR v Chan Kwok KuenCACC 15/ 2012[3], the Court of Appeal recapitulated that for drug trafficking cases, the amount of dangerous drugs involved is the most significant but not the sole factor for sentencing purpose.  Where a defendant sold drugs to an undercover agent on different occasions, the gravamen of the offences lies in the repeated and persistent trafficking acts over a period of time.

13.  In the present case, the trafficking activities took place within two months’ time in Wanchai and Central districts where local residents and tourists often gathered.  The defendant, who was assisted by his accomplices in these illicit transactions, was carrying out a well-organized, if not sizable, drug trafficking operation.  According to the admitted facts, the defendant offered to supply a larger amount of drugs than that requested by PW2.  This simply suggests that he had access to larger quantities of a variety of dangerous drugs.  In considering the appropriate sentences, these are, in my view, aggravating features in this case.

14.  In mitigation, it is urged on behalf of the defendant that the second transaction was “initiated” by the undercover police officer.  It cannot however be overlooked that the defendant had already given his phone number to the officers for further supply of dangerous drugs.  Apparently he was actively engaging in commercial trafficking.  Without a doubt, the offence would have taken place with someone else or other drug abusers.  Therefore, in my view, he was never encouraged to commit an offence which otherwise he would not have committed.  In the premises, I fail to see that this is a mitigating factor which warrants a discount in sentence.

15.  Furthermore the Court of Appeal has repeatedly emphasized that the sentencing court should avoid distinctions being drawn between traffickers, whether they be couriers or storekeepers.  Thus the role allegedly played by the defendant gives rise to no distinction in terms of culpability, albeit he under caution claimed to be a mere courier for reward.

16.  Insofar as Charge 2 is concerned, it involves two different types of dangerous drugs.  It is well-established that the court has discretion to adopt either of the two different approaches which are referred to as “individual approach” and “combined approach” for the purpose of sentence.  It is, however, of paramount importance that the totality principle must be considered at the end of the day, irrespective of which approach is preferred.  Having considered all the circumstances, I would adopt the combined approach.

Charge 1

17.  Given the quantity of “ice involved ie 0.21 gramme and having considered all the circumstances, I adopt a starting point of 2 years and 6 months’ imprisonment for Charge 1.

Charge 2

18.  Given the nature and potency of the drugs in question, “ice” is more potent than cocaine. Having considered the quantity of “ice” involved ie 1.16 grammes and the aggravating features identified hereinabove, the act of trafficking “ice” alone would attract a starting point of 3 years’ imprisonment.

19.  Taking into account the quantity of cocaine in Charge 2 and all the circumstances, the act of trafficking 1.22 grammes of cocaine alone would attract a starting of 2 years’ imprisonment.  As for totality, I consider the appropriate starting point for Charge 2 is 3 years and 3 months, reflecting an upward adjustment of 3 months.

Charge 3

20.  There is no sentencing guideline for the “Resisting” charge and the sentence is case specific.  The court must however send a stark message to the general public that all police officers in the execution of their duties must be protected and respected.  A sentence of deterrent effect is therefore called for.

21.  In mitigation, it is submitted on behalf of the defendant that he under caution explained that he was panic when he was approached by a group of people.  A District Court case HKSAR v Fayzan AliDCCC 1322/ 2010 is also cited for my consideration.  In that case, the defendant was sentenced to 21 days’ imprisonment for resisting a police officer by putting up struggle for a “prolonged period of time” as described by the learned Judge, and by kicking the officer.

22.  Nevertheless the admitted facts reveal that the police officers had already revealed their identities before he attempted to flee.  Therefore there was no room for misunderstanding at all.

23.  In the present case, the defendant pushed away two officers and put up vigorous struggle.  He also bit the thigh of the officer who suffered from tenderness, abrasion, redness and hematoma on his left thigh with one round bite wound.  Having considered all the circumstances and his previous records, I adopt a starting point of 3 months’ imprisonment.

Totality

24.  I have carefully considered everything urged upon me in mitigation.  Apart from his guilty plea, I see no other mitigation factors which warrant further discount in the respective sentences.

25.  As for Charge 1, the sentence of 2 years and 6 months is reduced by one-third to reflect his plea and the defendant is then sentenced to 20 months’ imprisonment.  As for Charge 2, he is sentenced to 26 months upon plea.  Having considered the totality principle, I order 2 months in Charge 1 be run consecutively to Charge 2.  The total overall sentence is one of 28 months, reflecting a notional starting point of 3 years and 6 months’ imprisonment.

26.  As for Charge 3, he is sentenced to 2 months upon plea.  Since Charge 3 is separate and distinct from the drug trafficking charges, I order the sentence be run consecutively to Charge 1 and 2.

Conclusion

27.  In the result, the defendant is sentenced to 30 months’ imprisonment accordingly.