HKSAR v. CHAN CHI HIN AND ANOTHER

DCCC 484/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 484 OF 2013

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REASONS FOR SENTENCE

1.  D1 and D2 are jointly charged with 2 offences of "Trafficking in a dangerous drug" (Charges 2 and 3). D1 alone is charged with another offence of "Trafficking in a dangerous drug" (Charge 1). D2 alone is also charged with an offence of "Possession of a dangerous drug" (Charge 4).

2.  D1 pleaded guilty to Charges 1 to 3.  D2 pleaded guilty to Charges 3 and 4.  The prosecution applied to leave Charge 2 against D2 in the court file; not to be proceeded against D2 without the leave of court.  I granted the application.

Summary of Facts

3.  During the period of Charges 1 to 3, WPC 14293 (PW1) and WPC 12260 (PW2) were tasked to work undercover.

Charge 1

4.  On 15 November 2012, PW1 called a phone number (5408 0062) around 8:30 pm but no one answered.  A few minutes later, PW1 received a call from the same number; she asked the caller if there would be any dangerous drugs for sale.  The caller replied in the positive and agreed to sell 1 "stroke" of ketamine at $100 to PW1.  They agreed to meet up in Tin Shui Wai about 10:30 that evening.

5.  PW1 and PW2 met D1 at a light rail station.  D1 took them to Staircase No.2, 3^rd Floor, Ching Choi House (Block 1), Tin Ching Estate where he gave a transparent plastic bag (which contained 2.25 grammes of a powder containing 1.69 grammes of ketamine) to PW1 for $100.

Charges 2 and 3

6.  On the offence dates of Charges 2 and 3, PW1 called D1 at the same phone number.  On each occasion, they met at the same 7-11 Store as pleaded in the respective charges.

7.  In Charge 2, about 9:40 pm on 16 November 2012, PW1 was waiting for D1 outside the 7-11 Store.  D1 and D2 showed up.  D1 gave a transparent plastic bag (which contained 0.40 gramme of a crystalline solid containing 0.39 gramme of methamphetamine hydrochloride) to PW1 for $450.  D2 went inside the store during the transaction.

8.  At the request of PW1, PC 3024 (PW3) stopped D1 and D2 outside the store for an ID check.  PW3 recorded their personal particulars.

9.  In Charge 3, about 10:15 pm on 6 December 2012, D1 and D2 showed up at the same 7-11 Store.  In the presence of D1, D2 gave a transparent plastic bag (which contained 1.31 grammes of a powder containing 0.90 gramme of ketamine) to PW1 for $100.  Once the transaction was completed, other police officers came out and apprehended D1 and D2.  D1 denied the offence whereas D2 admitted that it was wrong to sell dangerous drugs and asked for a chance.

Charge 4

10.  A body search was conducted on D2 at Yuen Long Police Station in the same evening of his arrest.  A folded $20 banknote (which contained 0.63 gramme of a powder containing 0.40 gramme of ketamine) was found in his left front trouser pocket.  Under caution, D2 admitted that the ketamine was for his own consumption.

Identification Parade and Admissions

11.  PW1 positively identified D1 and D2 as the persons who sold her the dangerous drugs in the respective charges.

12.  D1 remained silent in his video recorded interviews.

13.  Regarding Charge 3, D2 admitted selling the ketamine, which he had purchased from someone in Yuen Long, to PW1.

Mitigation

D1

14.  D1 is now 19.  He has 5 conviction records which involve 1 "trafficking" offence and 3 offences of "simple possession".  He has been sentenced to a Detention Centre and was put on Probation twice.

15.  D1's counsel Mr. LEE informed me that D1 and his girlfriend have a daughter, who is only a few months old.  They were planning to get married but for the present case.  Mr. LEE explained that in April 2012, D1 was a construction worker earning $16,000 per month.  Unfortunately, he injured his neck in an industrial accident. Foolishly, he did not make any Employees' Compensation Claim since he was afraid of not being employed again after his sick leave.  As a result, D1 had no income and his girlfriend became pregnant around the same time.

16.  Mr. LEE submitted that D1 just wanted to earn some quick money for his girlfriend and their baby.  He gained very little profit in each transaction.  Regarding Charge 2, Mr. LEE submitted that D1 dealt only in small quantities of ketamine.  It was PW1 who requested ICE, and D1 had to obtain the drug especially for her.  A letter written by D1 was placed before me; its contents are duly noted.

D2

17.  D2 is now 23, single and resides with his parents and 2 brothers.  He has 2 conviction records which involve 1 offence of "Assault occasioning to actual bodily harm" and 1 offence of "simple possession".

18.  D2's counsel Mr. LI informed me that D2 has suffered or is suffering from a number of illnesses which include a brain tumour since birth with follow-ups until 6 years old; shortening of left leg since birth with follow-ups until 10 years old; glaucoma and macular disease since birth  with follow-ups until February 2009; vasomotor rhinitis in January 2012; hypertension and left renal artery stenosis in December 2012 with current follow-up appointments.  Mr. LI has also informed me that D2 was told by his doctors that he would not live beyond the age of 30.

19.  In view of what Mr. LI has told me, I adjourned sentencing for 6 weeks to enable the Director of Legal Aid to obtain from the Hospital Authority a comprehensive report offering a general medical opinion on D2's current health conditions including his life expectancy.  Regrettably, the report is not available after 6 weeks, and Mr. LI is not optimistic about its available date. 

20.  On the other hand, I have 2 medical reports written by Dr. LEE of Lai Chi Kok Reception Centre, which are not particularly helpful.  I understand Dr. LEE's limitations in his access to D2's medical record.  I would not expect him to be in a position to give a comprehensive opinion on D2's health either.  Be that as it may, I could only rely on Dr. LEE's reports to verify D2's medical history.

21.  Mr. LI submitted that despite his ill-health, D2 managed to complete some technical training in engineering. Since August 2012, D2 has been working as a trainee technician in the Electrical and Mechanical Services Department (assigned to the Water Supplies Department).  His supervisor has written a letter praising his performance.

22.  I have reminded myself of the relevant legal principles on sentencing an offender with medical conditions.[1] Based on the available information, I am prepared to grant D2 a small discount on medical grounds as an act of mercy.

Sentence

23.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders.

24.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see  SJ v HII Siew Cheng [2009] 1 HKLRD 1) and ICE (see A-G v CHING Kwok-hung [1991] 2 HKLR 125).  For up to 10 grammes of ketamine, the sentence ranges from 2 to 4 years' imprisonment.  For up to 10 grammes of ICE, the sentence ranges from 3 to 7 years' imprisonment.

Charge 1 (against D1 only)

25.  In Charge 1, D1 trafficked in 1.69 grammes of ketamine; the appropriate starting point is 2 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 16 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  Hence, I sentence D1 to 16 months' imprisonment.

Charge 2 (against D1 only)

26.  In Charge 2, D1 trafficked in 0.39 gramme of ICE.  For such a small amount, a slightly lower starting point can be used.  I adopt 27 months' imprisonment as the starting point.  A one-third discount is given for the guilty plea, reducing the sentence to 18 months.  I sentence D1 to 18 months' imprisonment.

Charge 3 (against D1 and D2)

27.  In Charge 3, D1 and D2 jointly trafficked in 0.90 gramme of ketamine; the appropriate starting point is 2 years' imprisonment.  A one-third discount is given for the guilty pleas, reducing the sentence to 16 months.  For D1, I sentence him to 16 months' imprisonment.  For D2, I will, as an act of mercy, grant him a further discount of 2 months for his health conditions.  Hence, I sentence D2 to 14 months' imprisonment. 

Charge 4 (against D2 only)

28.  In Charge 4, D2 possessed 0.40 gramme of ketamine; the appropriate starting point is 12 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 8 months.  Based on the same reason, I will grant him a further discount of 2 months for his health conditions.  Hence, I sentence D2 to 6 months' imprisonment.

Overall Sentence

29.  For D1, he sold drugs to an undercover police officer on 3 separate occasions in Charges 1 to 3.  The 3 offences are separate and distinct.  I have borne in mind the comments made by McWalters J in HKSAR v PAU King Kong CACC 465/2012 on sentencing a drug trafficker selling different types of drug to an undercover police officer on multiple occasions[2].  Having considered the totality principle, I order 2 months in Charge 1 to run consecutive to Charge 2; and 2 months in Charge 3 to run consecutive to Charges 1 and 2; thereby arriving at a total prison term of 22 months for all 3 charges.

30.  For D2, he is involved in Charges 3 and 4 (a "trafficking" offence and a "simple possession" offence). Having considered the totality principle, I order 1 month in Charge 4 to run consecutive to Charge 3; thereby arriving at a total prison term of 15 months for both charges.