HKSAR v. CHAN WAI SUN

DCCC 297/2021

[2021] HKDC 986

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 297 OF 2021

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REASONS FOR SENTENCE

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1.  Mr Chan pleaded guilty before me to one charge of Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. Particulars are that he, on 7 November 2020, on a private car bearing registration mark WT9244, near Lamppost No FB8181, Tin Tsz Estate Bus Terminus, Tin Shui Wai, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 11.5 grammes of a solid containing 9.09 grammes of cocaine and 28.35 grammes of a solid containing 24.13 grammes of ketamine.

Summary of the facts admitted by Mr Chan

2.  On 7 November 2020, at about 9:15 pm, Mr Chan was in the driver’s seat of an idling private car whose particulars and location are stated in the charge.  When he saw a police constable, he panicked and wanted to drive away. He was intercepted and upon search, cash of $57,225.80 was found in the sling bag carried by him.

3.  The following items were found in the storage compartment at the offside front door:-

(a)  A transparent resealable plastic bag (with “30/100” written on it)  which contained 2 smaller transparent resealable plastic bags containing a total of 0.31 gramme of a solid containing 0.26 gramme of cocaine (“E1”); and

(b)  A transparent resealable plastic bag (with “30/100” written on it)  which contained 8 smaller transparent resealable plastic bags containing a total of 2.90 grammes of a solid containing 2.48 grammes of ketamine (“E2”).

4.  The police then disassembled the window control panel at the offside front door and found therein a transparent resealable plastic bag (with “70/70” written on it)  which contained:-

(a)  30 smaller transparent resealable plastic bags containing a total of 10.9 grammes of a solid containing 9.25 grammes of ketamine (“E3”);

(b)  30 smaller transparent resealable plastic bags containing a total of 10.9 grammes of a solid containing 9.35 grammes of ketamine (“E4”);

(c)  10 smaller transparent resealable plastic bags containing a total of 3.65 grammes of a solid containing 3.05 grammes of ketamine (“E5”);

(d)  A transparent resealable plastic bag (with “10” written on it)  which contained 10 smaller transparent resealable plastic bags containing a total of 1.61 grammes of a solid containing 1.28 grammes of cocaine (“E6”);

(e)  A transparent resealable plastic bag (with “10” written on it)  which contained 10 smaller transparent resealable plastic bags containing a total of 1.59 grammes of a solid containing 1.26 grammes of cocaine (“E7”);

(f)  A transparent resealable plastic bag (with “10” written on it)  which contained 10 smaller transparent resealable bags containing a total of 1.60 grammes of a solid containing 1.25 grammes of cocaine (“E8”);

(g)  A transparent resealable plastic bag (with “10” written on it)  which contained 10 smaller transparent resealable plastic bags containing a total of 1.60 grammes of a solid containing 1.25 grammes of cocaine (“E9”);

(h)  A transparent resealable plastic bag (with “10” written on it)  which contained 10 smaller transparent resealable plastic bags containing a total of 1.59 grammes of a solid containing 1.26 grammes of cocaine (“E10”);

(i)  A transparent resealable plastic bag (with “10” written on it)  which contained 10 smaller transparent resealable plastic bags containing a total of 1.59 grammes of a solid containing 1.26 grammes of cocaine (“E11”); and

(j)  A transparent resealable plastic bag (with “10” written on it)  which contained 10 smaller transparent resealable plastic bags containing a total of 1.61 grammes of a solid containing 1.27 grammes of cocaine (“E12”).

5.  Police arrested Mr Chan for “Trafficking in dangerous drugs”.  Under caution, Mr Chan said he received $2,000 a day for helping another to deliver the “goods”.  Mr Chan’s mobile phone was found in the car.

6.  Under cautioned VRI conducted a day after arrest, Mr Chan said (i)  he just wanted to earn some quick money since he was unemployed; (ii)  the “goods” meant ketamine and cocaine; and (iii)  he did not have any drug-taking habit.

7.  The total estimated street value of E1-E12 was about $33,000.

Criminal record

8.  Mr Chan has two previous convictions in 2019, none of them being similar.

Antecedents

9.  Mr Chan is aged 40 (39 at the time of the offence), educated to secondary school level, unemployed.  He is single but had a girlfriend (since deceased)  who bore him 2 sons.

Mitigation

10.  Mr Kenny Chan of counsel (“counsel”)  assigned by the Director of Legal Aid mitigated on behalf of Mr Chan.

11.  The following is a summary of the mitigation submissions.

12.  Mr Chan pleaded guilty and is entitled to 1/3 deduction on sentence.  He had previously worked as a driver earning about $18,000 per month.  His girlfriend passed away in 2015 and is survived by two sons aged 8 and 12 fathered by Mr Chan.  Both sons are being taken care of by the deceased’s mother.

13.  Mr Chan committed the present offence for making quick money.

14.  Because of Mr Chan’s background, counsel submitted that a starting point at the lower end of the scale may be taken.

15.  Counsel referred to para 46 of HKSAR v Cheung Wai Man, CACC 258/2017, where it says “as a general rule where the types of dangerous drugs are similar in potency the “combined approach” would be preferred, whereas the “individual approach” may be better suited for cases where the types of drugs are disparate in quantity and potency.”

16.  On a purely arithmetic calculation using the respective sentencing tariffs for trafficking in cocaine and ketamine, counsel worked out that for trafficking in 9.09 grammes of cocaine, the sentence should be 56.724 months; and for trafficking in 24.13 grammes of ketamine, the sentence should be 56.478 months.

17.  Counsel then advocated the combined approach and worked out the result of the conversion test for conversion of ketamine into cocaine only (but not the other way around).  The result so obtained was said to be about 67 months.

18.  Counsel submitted that taking into account Mr Chan’s lack of a similar record, his background and his co-operation with the police, Mr Chan is entitled to a starting point at the lower end of the range of about 67 months’ imprisonment.

19.  Today, counsel submitted a piece of paper listing the result of two other tests under the combined approach, namely the Absurdity test and Ratio test.  The result of the former test is said to be 80.898 months for cocaine. The result of the latter test is said to be 67.122 months.

20.  The result of the conversion test for ketamine was not stated on that piece of paper.  When asked, counsel gave the result orally and it is said to be 70.8 months.

Sentence

21.  Trafficking in a dangerous drug is a serious offence and it is made more serious when more than one kind of drug is involved.  In HKSAR v Chan Yuk Leong, CACC 318/2013, two aggravating factors were re-emphasized in the sentencing of an offender for trafficking in a cocktail of drugs, namely (1)  the ability of the trafficker to cater to a wider market; and (2)  the effect on users of combinations of dangerous drugs.  As regards (2), I bear in mind that the two types of drugs in this case are not placed in the same packet but were kept quite separate.

22.  I take note of the results of the three tests under the combined approach worked out by counsel.

23.  I have independently worked out the following test results.

24.  By using the individual approach, the result is slightly more than 113 months.

25.  Exercising my mind with the absurdity test using cocaine as the dominant drug, the result is slightly less than 81 months.

26.  Labouring through the conversion test with cocaine as the ultimate drug, I arrived at the same figure obtained by counsel, namely about 67 months. However, when the ultimate drug is changed to ketamine, the result is slightly less than 71 months.

27.  Lastly, the result of calculation by using the ratio test is again about 67 months.

28.  In Mr Chan’s case, in order to arrive at a fair sentence, and bearing in mind the dual aggravating factors, I will invoke the combined approach and adopt a starting point of 67 months’ imprisonment.

29.  Mr Chan pleaded guilty in good time for which he shall be entitled to a 1/3 discount.  I can see no other effective mitigating factors that I could act on.

(Mr Chan, please stand)

30.  Mr Chan is sentenced to a prison term of 44 months and 20 days.