HKSAR v. CHIU KIN MAN

HCCC 10/2018

[2018] HKCFI 1788

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 10 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant, Chiu Kin-man, faced one count of possession of dangerous drug contrary to Section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134, that is the 1st charge and one count of trafficking in dangerous drugs contrary to Section 4(1)(a) and (3) of the same ordinance. He pleaded guilty to the charges before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

Summary of Facts

On the 14 March 2017, the defendant was stopped by the police when he was approaching a serviced apartment building in Yau Ma Tei. He was searched and inside a sling bag he carried, the police found one plastic bag containing 4.72 grammes of a solid, containing 4.21 grammes of cocaine and cash, $10,200.

Under arrest and caution, the defendant said the dangerous drug was ‘Coke’ which he had bought for his own consumption and that is the 1st charge.

The defendant was brought back to his home for a search. Inside a wooden cabinet next to a safe, the police found four foil packs containing a total of 31 tablets containing 0.31 gramme of Nimetazepam, some empty transparent resealable plastic bags, one electronic scale and two folding knives. Inside the safe, the police found one plastic bag containing 23.7 grammes of a mixture containing 7.26 grammes of heroin hydrochloride and 13.1 grammes of cocaine, one plastic bag containing 27.9 grammes of a mixture containing 9.69 grammes of cocaine and 10.6 grammes of ketamine, one plastic bag containing 31.5 grammes of crystalline solid containing 30.9 grammes of methamphetamine hydrochloride and one plastic bag containing 10.9 grammes of herbal cannabis.

Under question, the defendant stated that the dangerous drugs, ‘Coke’ and ‘Ice’ were bought by him for his own consumption. The police did not find any consumption paraphernalia inside the premises.

During a video-recorded interview under caution, the defendant claimed he bought the cocaine found on him from someone for a $1,000, two hours before his arrest. The same person had also sold him the cannabis, methamphetamine, Nimetazepam and cocaine for $2,000. He claimed to put the drugs in smaller bags so that he could use them himself easily. The defendant also claimed to be a car dealer earning $30,000 per month. He had been a drug addict since September 2016 and spent about $15,000 per month on drugs.

The estimated street value of all the dangerous drugs seized was $16,874.

The defendant admitted that the dangerous drugs found inside his home were possessed by him for the purpose of trafficking.

The Background and Mitigation

According to the antecedents statement, the defendant was born in February 1976. He is now 42 years of age. The defendant is not married. He had a son and a daughter. He claimed to be an online salesman for automobiles, earning $30,000 per month at the time of his arrest.

The defendant is not a man with a clear record. He had a string of convictions totalling 17, starting with robbery in 1989 and ending with trafficking in dangerous drugs and possession of dangerous drugs in 2013. As for dangerous drugs related offences, he has three previous of possession of dangerous drugs, three previous of trafficking in dangerous drugs and one possession of equipment fit for the intake of dangerous drug.

Mr Leung Chun-keung, counsel for the defendant, gave me further background of the defendant. Though the defendant is not married, he had a daughter in a previous relationship and was contributing $5,000 per month for that daughter. He and his cohabitee has a son born three days before the day he was arrested for the present offences. Mr Leung submitted that the baby son was born with a tumour on his neck necessitating surgery. As the defendant wanted the operation to be done in a private hospital, he committed the offence of trafficking in dangerous drugs in order to make money for the operation.

Since the defendant’s arrest and incarceration, the baby has undergone an operation to remove the tumour at the Queen Elizabeth Hospital. I was provided with a photograph showing the tumour at the time and I have seen the baby boy in court and noted that the tumour was no longer there. I also noted that the tumour was massive and very unsightly. No doubt such a massive tumour would have caused considerable alarm on the part of the defendant, the baby’s father, and the baby’s mother, of course.

I have since been provided with a report on the excision of the posterior neck mass from the baby’s neck. There is no need to mention in detail the contents of the report here. I was glad to see that there was no evidence of malignancy, although I have been informed by Mr Leung that the doctor had told the defendant’s cohabitee, the mother of the baby, that in future there may still be a chance of the skin or the cells turning into cancer. And the baby has to have follow-up treatment.

Although there was a submission that about 10 per cent of the dangerous drug found inside the flat was intended for the defendant’s own consumption, and that the $10,200 found on the defendant’s person was not connected with dangerous drugs trafficking. Upon this court indicated to the defence that on the Admitted Facts of this case, this court will not accept the bare assertion of the defendant in relation to these two items. Mr Leung informed this court that the defendant will not pursue these two issues.

As for the sentence, Mr Leung has very helpfully prepared the list with all the three methods. That is the absurdity test, the conversion test and the ratio test for my consideration. Mr Leung submitted that the dangerous drug in the possession charge if added to the trafficking in a dangerous drug or dangerous drugs charge, the amount was such that the sentence would not be different and he asked this court to consider passing concurrent sentences for the two offences.

Consideration for the Sentence

I will first deal with the more serious offence of trafficking in dangerous drugs. Trafficking in dangerous drugs is a serious offence. A person convicted of this offence on the indictment is liable to a fine of $5 million and life imprisonment. For the trafficking of more than one kind of drugs, there are two sentencing approach opened to the sentencing judge, an individual approach or a combined approach. Before I decide which approach to adopt, I will look at the appropriate starting point for each drug.

‘Ice’

The ‘Ice’ involved here is 30.9 grammes. According to the case of HKSAR vs Tam Yi Chun [2014] 3 HKLRD 691, trafficking 10 to 70 grammes of ‘Ice’, the appropriate starting point is one between 7 to 11 years.

Cocaine

The cocaine involved here is 22.79 grammes. So the authority for the trafficking of heroin, that is Lau Tak Ming is applicable here and that is the case of Pedro Nel Rojas. On its own, such quantity would warrant a starting point of 5 to 8 years. That is within the band of 10 to 50 grammes.

Heroin

The quantity involved here is 7.26 grammes. The starting point is between 2 to 5 years. That is Lau Tak Ming up to 10 grammes.

Ketamine

The ketamine involved here is 10.6 grammes. So according to the authority of Hii Siew Cheng, the starting point is between 4 to 6 years, that is 10 to 50 grammes.

Nimetazepam

There was no tariff for this but it had been treated as ketamine for the purpose of sentencing. And there is an authority for that, it is called Wong Kin Kau. So adding the 0.31 grammes of Nimetazepam to the 10.6 grammes of ketamine, 10.91 grammes is still within the same band of 10 to 50 grammes.

Cannabis in herbal form

The amount involved is small, 10.9 grammes. According to the case of Tuen Shui Ming, possessing under 2,000 grammes of cannabis resin for the purpose of unlawful trafficking would warrant a starting point of up to 16 months’ imprisonment, bearing in mind that an adjustment is needed for a cannabis in herbal form due to the lower THC concentration.

Now, although what I have here is three kinds of more potent dangerous drugs as ‘Ice’, heroin and cocaine and three types of less potent dangerous drugs, ketamine, Nimetazepam and herbal cannabis, I am of the view that by adopting a combined approach, using the larger amount for ‘Ice’ as basis for the starting point and then adjusting upwards this starting point when taking into account any significant amount of the other drugs would be fairer to the defendant.

Having considered the rather small amount of herbal cannabis, for the purpose of sentencing, I would ignore the herbal cannabis altogether.

Taking the amount of ‘Ice’, that is 30.9 grammes, as the basis of the starting point and after taking into account the circumstances of the offence, I am of the view the starting point of 8 years and 3 months’ imprisonment is appropriate. The amount of cocaine and heroin can be added together making a total of 30.05 grammes. Almost the same amount as the ‘Ice’ involved.

All these three more potent dangerous drugs were ‘Ice’, if they were all ‘Ice’, the amount will still be within the 10 to 70 grammes bracket of Tam Yi Chun because it is 60.95 grammes with a starting point of 7 to 11 years. If they were all cocaine, the amount would be within the 50 to 200 grammes bracket of Lau Tak Ming, with a starting point of 8 to 12 years.

The ketamine and the Nimetazepam, the total amount of these two were 10.91 grammes. Now, assuming these two were also ‘Ice’, as my assumption that the cocaine was also ‘Ice’, and the heroin, the total amount would be 71.86 grammes which falls into the higher bracket of 70 to 300 grammes with a starting point of 11 to 15 years.

Assuming that they were all cocaine, then 71.86 grammes of cocaine still falls within the 50 to 200 grammes bracket with a starting point of 8 to 12 years.

If all the dangerous drugs were ketamine, a total of 71.86 grammes of ketamine would fall into the band of 50 to 300 grammes with a starting point of 6 to 9 years.

So bearing in mind what I have said about and also that the defendant was dealing with a number of dangerous drugs, I am of the view that an appropriate adjustment upwards of the 8 years and 3 months’ imprisonment is an addition of 21 months, making an enhanced starting point of 10 years’ imprisonment.

As defendant pleaded guilty at the earliest opportunity, he is entitled to a full one-third discount. I am sympathetic towards the defendant as to the predicament he faced when his new born son has to undergo surgery to remove an unsightly tumour on the neck. Having considered the particular circumstances of this case, I am prepared to give the defendant a discount greater than one-third. I am of the view that a sentence of 5 years and 6 months would properly reflect the defendant’s culpability.

The Possession Charge

Having considered the amount of cocaine involved, 4.21 grammes, and the circumstances of the offence, an appropriate starting point is one of 20 months. With the same discount I had given for the trafficking charge, the sentence for the possession of dangerous drugs is 11 months’ imprisonment.

I now have to consider the totality principle. I bear in mind that had the defendant been convicted of trafficking these 4.21 grammes of cocaine together with those dangerous drugs involved in the trafficking charge, such a quantity would not have increased the sentence for trafficking. For this reason, even though possession of dangerous drug is a different offence as compared with the trafficking in a dangerous drug, I will order both sentences to run concurrently.

So for the 1st charge, possession of dangerous drugs, 11 months’ imprisonment. For the 2nd charge, the trafficking in dangerous drugs, 5 years and 6 months’ imprisonment. Both sentences to run concurrently, making a total of 5 years and 6 months’ imprisonment.