HKSAR v. CHAN CHIN HO

DCCC 772/2023

[2024] HKDC 911

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 772 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant CHAN Chin-ho (D)  pleaded guilty before me to 2 Charges. Charge 1 “Trafficking in dangerous drugs”, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap.134. Particulars of Offence stated that on 24 April 2023, at Room 713, Silka Far East Hotel, Nos. 135-143 Castle Peak Road, Tsuen Wan, he unlawfully trafficked in a dangerous drug, namely 5.83 grammes of a solid containing 4.29 grammes of cocaine. Charge 2 “Possession of prohibited weapon”, contrary to section 4 of the Weapons Ordinance, Cap.217. Particulars of offence stated that at the same time and place, he had in his possession a gravity-operated steel baton.

2.  The facts of the case are simple and straightforward. At around 6:40 pm on 24 April 2023, a party of police officers intercepted D when he was entering Room 713 of Silka Far East Hotel in Tsuen Wan with his access card. The Police then conducted a search inside the room and found the following items:

(a)  A black re-sealable plastic bag containing 18 black re-sealable plastic bags containing a total of 5.74 grammes of a solid containing 4.29 grammes of cocaine (E1);

(b)  2 folded HK$20 banknotes containing a total of 0.09 grammes of a solid containing cocaine (E2);

(c)  A digital scale (E3);

(d)  A beaker (E4);

(e)  5 empty large black re-sealable plastic bags (E5);

(f)  A stack of smaller empty black re-sealable plastic bags (E6);

(g)  Cash HK$610; and

(h)  An extendable baton (E7).

3.  D was arrested. Under caution, he admitted that the dangerous drugs were cocaine and he delivered them for monetary reward, and he kept E7 for self-defense.

4.  In a subsequent video-recorded interview, D admitted, inter alia:

(a)  E1 to E7 belonged to him;

(b)  He bought the cocaine from a person named “Siu Ming” at Yen Chow Street in March 2023 for HK$10,000, and this “Siu Ming” introduced buyers to him for the drugs;

(c)  He sold the cocaine at HK$400 to HK$500 per packet;

(d)  He packaged the cocaine in question by himself;

(e)  The cash HK$610 was proceeds from drug trafficking activities;

(f)  He was unemployed;

(g)  He picked up E7 in Sham Shui Po and kept it in Room 713; and

(h)  One of the mobile phones found on him was given to him by “Siu Ming” for drug trafficking activities.

5.  E7 was examined by a Forensic Scientist who confirmed that it was 21 cm in length when retracted and 54 cm when fully extended, and the inner and middle tubes could be extended by operation of gravity or a combination of centrifugal force and gravity force.

6.  The estimated street value of E1 and E2 is HK$6,366.

7.  D admitted that he possessed E1 and E2 for the purpose of unlawful trafficking and E7, a prohibited weapon within the meaning of Cap. 217, for self-defence use.

Defendant’s Backgrounds and Mitigation

8.  D is 27 years old, born in Hong Kong on 26 September 1996. He received education up to Form 3 level and had worked as a transportation worker before. He is single and resided with his grandparents in a public housing unit in Cheung Shan Estate, Tsuen Wan. At the time of his arrest, he claimed to be living with his girlfriend at Room 713. He has 2 previous convictions for 3 offences, 2 counts of “Robbery” in December 2015 when he was sentenced to a total of 6 years 3 months imprisonment, and 1 count of “Trafficking in Dangerous Drugs” in August 2022 for which he was sentenced to 16 months. He committed the present offences just 2 months after his release from prison in February 2023. He was also sentenced to DATC in October 2015 for “Possession of Dangerous Drugs” with No Conviction Recorded.

9.  Mr. Davies representing D submitted in mitigation that the parents of D divorced when he was very young. D was raised by his grandparents, who are in their 90s, and lived with them. He worked as a wine sales assistant at his father’s shop with a monthly salary of HK$10,000, out of which he contributed HK$6,000 to his grandparents. D committed the present offences out of financial pressure to take care of his elderly grandparents. At the time of the offences D also has a girlfriend who is aged 25 and worked as a sales representative. D has considered marriage with her after he serve out his sentence for the present case.

10.  Mr. Davies submitted that D is extremely remorseful and regret what he had done. He pleaded guilty on a timely basis, which saves the Court’s time and resources, and should be entitled to the full 1/3 discount. Mr. Davies further submitted that D was a drug addict, as reflected by his previous possession conviction. Some parts of the drugs currently seized were for D’s own consumption. However, upon my enquiry, he stated that D will not provide any further evidence in support of this submission. Mr. Davies submitted 3 mitigation letters written by D, his father and girlfriend in support of the above mitigations.

11.  For Charge 1, Mr. Davies referred to R v Lau Tak Ming[1] and HKSAR v Herry Jane Yusuph[2], and submitted that the starting point for trafficking in 4.29 grammes of cocaine would be 39 months. He urged the Court to accept the mitigating factors mentioned above and accept that the circumstances are the least serious in this type of offence and D’s culpability is low.

12.  So far as Charge 2 is concerned, Mr. Davies cited HKSAR v Wu Kim Wan[3] and 2 District Court decisions[4] in support of his submissions that a fine would be sufficient in the context of the present case, but if imprisonment is considered appropriate, he would urge the Court to consider totality principle and order the sentence to run concurrent or partly concurrent to the sentence for Charge 1.

Sentence

13.  It is well established that the starting point for trafficking in up to 10 grammes of cocaine attracts a sentence of 2 to 5 years imprisonment if convicted after trial[5].

14.  I bear in mind the comments by the Court of Appeal in HKSAR v Chan Yuk Leong[6] that tariffs are not to be applied on a linear scale and that the court should not slavishly applying a strictly mathematical approach. I also bear in mind the approach in sentencing in this type of offences as laid down in Yusuph[7].

12. This case involved trafficking in 4.29 grammes of cocaine. I adopt 39 months as the starting point.

13. In HKSAR v Godson Ugochukwu Okoro[8], the Court of Appeal stated that sentencing guidelines were specifically directed to a courier or storekeeper and could be adjusted upwards for an actual trafficker. Mr. Davies submitted that D was in the category of a courier or storekeeper, I do not agree. D admitted that he purchased the cocaine to resell them for profit, he was therefore more akin to an actual trafficker. Also, as conceded by Mr. Davies, previous similar convictions can be regarded as an aggravating factor[9]. For these 2 factors, I will adjust the starting point upwards by 3 months to 42 months.

14. Time and again the CA had stated that “Trafficking in dangerous drugs” is a very serious offence so that general deterrence takes precedent, the general background of D carries very little weight[10].

15. Mr. Davies submitted that D was a drug addict and part of the drugs seized was for his own consumption. I do not accept this, there is no evidence to support either that D was a drug addict at the time of arrest or that E1 or E2 was for self-consumption.

16. The only mitigating factor is D’s timely guilty plea. For this I will give him the full 1/3 discount. For Charge 1, D is sentenced to 28 months imprisonment.

17. For Charge 2, the maximum sentence is HK$10,000 fine and imprisonment for 3 years. I accept that there is no evidence that D had used E7 before but he admitted that he kept it for self-defence, meaning that he was prepared to use it when and where necessary. I adopt 3 months as the starting point, reducing it by 1/3 for the timely guilty plea, and sentence D to 2 months imprisonment.

18. The 2 offences are separate and distinct, so that the sentences should be served consecutively. Taking totality principle into account, I order that 1 month be run consecutively to Charge 1.

16. D is sentenced as follows:

Charge 1 : 28 months

Charge 2 : 2 months, 1 month be run consecutively to Charge 1

Total sentence: 29 months.