HKSAR v. CHAN LAP MING

DCCC 855 /2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 855 OF 2013

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Reasons for Sentence

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Charge and facts

1.  The defendant pleads guilty to a charge of trafficking.  In the early morning on 7 June 2013, the defendant came out from Yuk Ping House near Long Ping Shopping Centre, Yuen Long, N.T.  He went to the staircase between Yuk Ping House and Suk Ping House and then towards Po Ping House.  As he approached Po Ping House, he began to run towards Fuk Hi Street.  His acts were throughout observed by PC 6998, who intercepted him on Fuk Hi Street.  He had one plastic bag containing 10.46g of a crystal containing 10.34 g of methamphetamine hydrochloride (“Ice”) in his trouser pocket. 

2.  After caution, he said he had bought the Ice for sharing with friends by a pool of money among themselves.  He had contributed $1,300 whereas 2 friends had together contributed $2,500.  Later on, in a cautioned VRI, he said a friend had lent the money to him.  This friend and another friend, who were both present earlier on, did not know he would buy drug with the money or that the drug would be shared. 

3.  The estimated street value of the Ice was $7,434.

Personal background and mitigation

4.  He is 32 years of age, F. 2 education level.  He has a clear record.  He lives in Fu Sin Estate, Tai Po, N.T. with his parents and elder brother.  He worked as a construction site casual worker before arrest.  He earned $13,000 per month.  He contributed $5,000 - $6,000 to the family expenses per month.  He claimed to be a drug addict in the Antecedent Statement.   

5.  His solicitor submits that two-thirds of the drug was for his friends whereas one-third was for his own consumption.  This comes from a strictly arithmetic approach based on their individual contributions to the purchase price.  He accepts it as the defendant’s case, as per his cautioned reply, that the friends did not know the money was for the purchase of drug.  He submits that the prosecution has failed to prove that the entirety of the bulk was for the purpose of trafficking.  Hence, the Court should take a corresponding lower starting point for the sentence.  The case in point is HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, 77.   

6.  In dealing with the aforesaid submission, I have expressly outlined my concerns for the following circumstances to his solicitor:

(1) There was no evidence or even suggestion (ie a little or shred of evidence at least to qualify as a discharge of the evidential burden by the defence[1]) that his friends were drug addicts or that they wanted any part of the drug at all;

(2) That the defendant was found at a location far away from home, inconsistent with a case of bringing the drug home after purchase;

(3) That it was in the early morning, inconsistent with a case of just moving the drug home after work in the construction site (and there is no allegation that he worked at a 24-hour operating construction site);

(4) That he was not in possession of drug consumption kit when intercepted, inconsistent with a case of consuming the drug outside home;

(5) That a search of his home yielded no drug consumption kit, inconsistent with a case of his being a drug addict;

(6) That there was no electronic scale found at home, inconsistent with a case of dividing the drug, which was of substantial monetary value, into two-thirds for his friends and one-third for himself.

7.  After I have expressed the aforesaid concerns to his solicitor and the need for a Newton hearing, I ask if the defence would like to call evidence to support its case in mitigation.  Upon taking full instructions, he informs me that the defendant does not wish to have any Newton hearing and there is no evidence to be called by the defence either, independent of the Newton hearing.   

Sentencing guidelines

8.  The Court of Appeal has stated that trafficking in up to 10 g of Ice shall warrant 3 – 7 years' imprisonment as the starting point.  For 10 – 70 g, the starting point shall be 7 – 10 years (AG v Ching Kwok-hung [1991] 2 HKLR 125, HKSAR v Capitania [2004] HKCU 926).    

Sentencing this defendant

9.  In my view, my outlined concerns, which are not answered by the defence, give rise to the irresistible inference that the bulk of drug was for the purpose of trafficking.  I take a starting point of 7 years.  I give a one-third discount for his plea of guilty.  He has no other mitigating factors.  His sentence is 4 years and 8 months.