HKSAR v. CHAN CHAU

HCCC 278/2018

[2019] HKCFI 2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 278 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 4 March 2017, Mr Chan Chau, the accused, was intercepted by the police for drugs offences. He was arrested and brought before the Magistrates’ Court. On 3 September 2018, he was committed by a magistrate for sentence to this court on the charges set out at page 58 of the record. There has been a small amendment to those charges by consent. The effect of that amendment is to make the dates of the alleged conduct match.

The charges upon which the accused as amended was committed were trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134. That charge alleges on 4 March 2017, in Fuk Wing Street in Sham Shui Po, he unlawfully trafficked in 36.4 grammes of a crystalline solid containing 35.9 grammes of methamphetamine hydrochloride. Two, possession of a dangerous drug, contrary to section 8 of the ordinance. This charge alleges that on the same day the accused was in possession of 0.29 grammes of a crystalline solid containing 0.29 grammes of methamphetamine hydrochloride.

In the process of committal, the accused admitted that on 4 March 2017, shortly after 7 pm, a taxi stopped outside an address in Fuk Wing Street in Sham Shui Po. The accused was in the rear passenger seat of the taxi. Police approached the taxi and conducted an investigation.

They searched the boot of the taxi and a bag was found. Inside that bag, there were three plastic bags containing a total of 36.4 grammes of a crystalline solid containing 35.9 grammes of methamphetamine hydrochloride. The accused was arrested and cautioned for the offence of trafficking in dangerous drugs and he elected to remain silent.

A further search of the accused produced from his right jeans pocket, a plastic bag containing 0.29 grammes of a crystalline solid containing 0.29 grammes of methamphetamine hydrochloride. The accused was taxed with this discovery and again remained silent.

By his plea of guilty and admission of the facts, the accused admits that he was guilty of trafficking in dangerous drugs and possessing dangerous drugs as outlined.

Background and antecedents

The accused is a 39-year-old man who was born in mainland China. He is the holder of a Hong Kong permanent identity card. He is single and asserts that his occupation is that of a construction worker. His health condition is reported as being good.

The accused has a series of previous convictions, all of which bear no relation to dangerous drugs. The offences are, essentially, false accounting and the use of false documents.

Let me add this. Counsel initially submitted that 10 grammes of the quantity of drugs in the 1st charge was for the consumption of the accused. He asserts that the accused is an addict and has been so for something of the order of 10 years.

In support of that proposition, he tenders a report from a urine test which was conducted in the Correctional Services Department four days after his arrest. That report, Exhibit D1, reveals the presence of amphetamines. That provides strong circumstantial support for the assertion of addiction.

I asked the prosecution, represented by Ms Noelle Chit, to assist the court as to the position of the prosecution in relation to the assertion that 10 grammes, that is just under one-third of the drugs, were for personal consumption. The Prosecution said that it could not accept this position. First of all, the prosecution point to the fact that there was no earlier assertion of part of the drugs being for self-consumption. Secondly, the prosecution point to the fact that Count 2 itself reveals some drugs to be in the possession of the accused and that is inconsistent, so it is argued, with the contention that almost one-third was for self-consumption. Finally, the prosecution says, “Well, even if a proportion of the drugs was the reward for this man carrying them, the notion of about one-third being that reward is questionable.” I will come back to that issue in a moment.

The community of Hong Kong and, as a result, the courts of Hong Kong, have for many, many years taken a severe view of drug trafficking particularly in relation to ‘Ice’. This particular drug has terrible consequences for the individual. Ridding oneself of an addiction to ‘Ice’ is, to say the least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to ‘Ice’ is fraught with instances of disappointment.

However, there are serious consequences for the community as well. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs. Further, the conduct of persons affected by ‘Ice’ in private and more pertinently in public can be quite dangerous. The view of the community and the courts is reflected in the nature of the sentences and the levels of sentences traditionally imposed for drug trafficking.

To reflect the serious view that the courts and the community take in relation to the trafficking in dangerous drugs, the courts have provided sentencing guidelines for various forms of dangerous drugs, including ‘Ice’, which is of course the subject of this charge. The maximum penalty under the law is a fine of $5 million or life imprisonment.

In relation to ‘Ice’, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLDR 691. The guideline suggested for quantities involved in the present case, that falls within the range of 10 grammes to 70 grammes, that would normally attract a sentence in the range of 7 to 11 years’ imprisonment ([2014] 3 HKLRD 691. Para 34). The range in question is upon the basis of a conviction after trial. That is the basis upon which the starting point for sentence is calculated.

Sentencing Principles in Relation to Possession of Dangerous Drugs

The maximum sentence for possession of dangerous drugs is a fine of $1,000,000 and, subject to section 54A of the Dangerous Drugs Ordinance, to imprisonment for 7 years. For reasons which will shortly become apparent, section 54A does not have any impact on this case. There is and can be no tariff for possession of dangerous drugs. In the broad scheme of things, the quantity possessed by the accused is relatively small in this count.

Discount

The authorities demonstrate that a person who pleads guilty at the earliest practicable opportunity is ordinarily entitled to a discount from the appropriate starting point and the discount should be of the order of 33 per cent.

Application of Sentencing Principles to the Facts

The Agreed Facts do not reveal a great deal about what the accused was doing when he was intercepted in the taxi. I have already indicated, prosecution accepts and I consider this to be both sensible and common sense that some of the drugs but not of the order of one-third were for self‑consumption. In this regard, the prosecution is being both sensible and pragmatic.

Equally sensible and equally pragmatic, counsel for the accused, Mr Leung, does not press the one-third but asks for some allowance for possession for self-consumption. It is to be noted that the authorities clearly demonstrate that possession of dangerous drugs and if we were dealing with about one-third of the 1st charge, we are dealing with a substantial quantity of drugs, and even for possession that would attract a prison sentence.

Further, the authorities demonstrate that allowance should be made by enhancing that sentence to reflect the latent risk of possessing as much as that amount. If I were to proceed on the basis of one-third, the latent risk would be substantial and the sentence that I would have imposed for that would have been a significant term of imprisonment. However, as I say, I am entitled to accept and I do accept that some of these drugs were for personal consumption.

Doing the best I can and applying the analysis of that issue broadly, I am obliged to set a starting point and then discount that by one-third.

In my judgment, it would not be appropriate to apply a strictly linear calculation to the starting point in the particular sentencing band under consideration. In my judgment, an appropriate course would be to adopt an analysis on the proposition that the higher in the band, the more severe the relative sentence should be. Allowing for a quantity for self-consumption, I think an appropriate starting point would be 8 years and 4 months.

As I have mentioned, there is no tariff for possession of dangerous drugs. In my judgment, the quantity involved in the present case on Count 2 is relatively small. It appears to me that there exists no realistic latent risk that the amount subject of the 2nd charge or part of it might fall into other hands and thus sentencing principles concerning what is colloquially known as latent risk are not engaged. In my judgment, a starting point of something of the order of 3 months’ imprisonment is appropriate for that case.

Applying the one-third discount to the starting point of 100 months and in order to combine justice with mercy, I order that there be a sentence on the 1st count of 66 months. The reduction of the sentence on the 2nd count would be 2 months and I order that the sentence be served concurrently with the sentence on the 1st count.

The net result of this is that the order of this court is that the accused be sentenced to a term of 66 months’ imprisonment.