HKSAR v. CHIN KIN CHUNG

HCCC 419/2017

[2018] HKCFI 1471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 419 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The 37-year-old defendant has been committed to this court for sentence from Eastern Magistracy on a count of possession of 0.31 grammes of cocaine, being the 1st count, and on a count of trafficking in 99.7 grammes of cocaine, being Count 2, and on the 3rd count of possession of 11.66 grammes of herbal cannabis.

The facts of the case are as follows.

On 27 March 2017, the defendant and another person were intercepted as they emerged from a building in San Tin in the New Territories. They were searched. Nothing of suspicion was found on the other person, but on the defendant was found a small plastic bag containing 0.31 grammes of cocaine and cash amounting to HK$35,000. His possession of that cocaine forms the basis of Count 1. The defendant, when questioned, said he lived in premises on the 2nd floor of the building and police then conducted a search of those premises. In those premises, police found five packets containing, in aggregate, 99.7 grammes of cocaine hidden behind a lamp in the bedroom. The defendant admitted that it was he who had purchased those drugs and those facts form the basis of Count 2.

A further search of the bedroom found two packets of cannabis in herbal form. Those packets contained a total of 11.66 grammes of cannabis which is the subject of Count 3. An electric balance and 67 plastic bags suitable for the weighing and packaging of dangerous drugs respectively, were also found in the premises. Though, he initially claimed under caution that all of the drugs were for his own consumption, the defendant now admits that he was trafficking in the 99.7 grammes of cocaine found in the five separate packages.

The defendant's companion, a female who had been living with the defendant at the premises denied any knowledge of the drugs and matters against her were not taken any further.

I will deal firstly with the trafficking offence contained in Count 2. So far as that offence is concerned, I take a starting point of sentence of 9 years' imprisonment. The only mitigation of substance available to the defendant is his plea of guilty to the charged offences. That plea was given to the Magistrates' Court at his committal proceedings on 13 November 2017 and the defendant was accordingly committed to this court for sentence.

He is, therefore, on the basis of Ngo Van Nam CACC 418/ 2014, entitled to the full one-third discount. The starting point of sentence in respect of Count 2 is, therefore, reduced to a sentence of 6 years' imprisonment.

So far as Count 1 is concerned, I take a preliminary starting point of sentence of 18 months' imprisonment. Given the high latent risk of the drugs, the subject of the count, finding their way into the possession of others in the circumstances of their being in the possession of the defendant, a drug trafficker, as he left the premises, I enhance that starting point to one of 24 months' imprisonment. Given the sole mitigating factor is that of the defendant's plea of guilty at committal, I reduce that starting point to a sentence of 16 months' imprisonment.

So far as Count 3 is concerned, the aggregate quantity of 11.66 grammes of cannabis warrants a preliminary starting point of sentence of 3 months' imprisonment. That is enhanced on the basis of the latent risk factors I have outlined to a sentence of 4 months' imprisonment. Allowing for the full one-third discount, the defendant is sentenced on this count to 10 weeks' imprisonment.

Given that the possession of herbal cannabis creates a cocktail of drugs in the two possession offences and that the herbal cannabis offence is greatly the lesser of the two offences, I order that the sentences in Counts 1 and 3 be served concurrently to each other.

In further considering the totality of sentence, I take into account that the trafficking offence in Count 2 is by far the most serious offence and that the possession of the 0.31 grammes of cocaine in Count 1 adds little to the defendant's overall culpability. To demonstrate that, if the 0.31 grammes of cocaine in his possession had been included in the trafficking count, the starting point of sentence would have, in my view, remained the same.

I, therefore, perhaps generously, order that the sentences in Counts 1 and 3 be served concurrently, not only with each other, but also with the sentence imposed in respect of Count 2. That is a total sentence of 6 years' imprisonment.