HKSAR v. CHAN TAK HIM

DCCC 488/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 488 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge of trafficking in a dangerous drug.

2.  The facts show that the drugs particularised in the indictment were seized by police from a room rented by the defendant’s mother for the defendant.  The drugs were seized on 24 March this year from a room in Tai Kei Leng in Yuen Long.  The drugs, which were found in three transparent bags, were found together with six empty transparent plastic bags, an electronic scale, two rolls of tape, a calculator, two ledgers and a pen.

3.  At the scene, the defendant admitted ownership of the dangerous drugs for sale and profit.  In a later video‑recorded interview, the defendant further admitted he had purchased the drug on 23 March, which was the day before, in Yuen Long, for $700.  That was for 7 grammes of “Ice”.  He had already sold a gramme of “Ice” on the 23rd for $200, and he had planned to sell the remaining “Ice” for about $1,000 if he could find customers.  In this case, we are talking about a total of 5.12 grammes of the drug.

4.  The defendant has admitted his antecedents.  He has 10 previous records of convictions and has two convictions for possession of a dangerous drug.  In 2014 he was sentenced to 20 months’ imprisonment for possession, and this year, 2015, for a further possession of dangerous drugs, he was sent to a drug addiction treatment centre, where he is now.  In fact, the defendant has been to a drug addiction treatment centre in 2006 for an offence of robbery.  This would suggest the defendant is a fairly long-term drug addict, if his first DATC entry was in 2006.  He was only released from prison in December 2014 for the case of possession of a dangerous drug, and he is found to be trafficking in the drug by March of 2015 at a time when he was on bail for the offence of which he was later convicted, the further possession of drugs, for which he is now in a drug addiction treatment centre.  I could suppose that we can conclude from this that the defendant is a deep-seated addict.

5.  His personal particulars show that he is now 29 years old.  I am told he has two children by a girlfriend, but he does not seem to keep in touch much with them any more.

6.  In mitigation, the defendant obviously refers to his plea of guilty today.  He says in mitigation he would consume part of the seized “Ice” himself.  He estimated that it would be about half.  He did not say this in the video-recorded interview directly.  However, he did refer to the value of the drugs to be sold of $1,000, and that corresponds apparently roughly with half the value of the remaining drugs that he had at the time.

7.  Now, this is combined with the defendant’s obvious conviction.  His presence in drug addiction treatment centre evidences that and does provide a clear factual basis for the court to consider that a portion of the drugs would be for the defendant’s own consumption, and that should be reflected in the starting point for sentence.  It is difficult to believe that a defendant such as himself, clearly with a deep-seated addiction, could be in the presence of that quantity of “Ice” and not help himself to it.

8.  The starting point sentence for trafficking in dangerous drugs in this particular drug, described as methamphetamine hydrochloride, commonly known as “Ice”, is settled by guideline sentences.  For up to 10 grammes of the drug, the sentencing range should be between 3 to 7 years’ imprisonment.  The quantity of the drug seized is a necessary and important factor in determining where on the guideline the starting point for sentence should be determined, thus ensuring consistency.

9.  The quantity here of 5.12 grammes is towards the lower middle of the guideline.  I consider the appropriate starting point for sentence should be 4½ years’ imprisonment, which is 54 months’ imprisonment.

10.  The evidence shows the defendant is a long‑term and quite heavy drug addict and supports his contention that part of the drug would be used for his own consumption.  There is authority for the proposition that if this is the case, then that can be represented by a deduction from the starting point for sentence of between 10 to 25 per cent of that starting point.

11.  I consider that in this case, having regard to the evidence I have referred to, this feature of the case would justify a discount in the region of 15 per cent of the starting point for sentence.  As this is actually a fraction, I will round it up to a figure of 9 months’ imprisonment.

12.  Once this is deducted from the original starting point of 54 months, this gives a new starting point of 45 months’ imprisonment.

13.  The defendant is entitled to a one‑third discount from this sentence to represent his plea of guilty.  That is a further 15 months.

14.  That leaves a final sentence of 30 months’ imprisonment.  I note that because of its length, it will be in the current drug addiction treatment centre.  Training the defendant will cease to have any effect.