HKSAR v. CHAN ERNEST

HCCC 327/2016

[2018] HKCFI 2860

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 327 OF 2016

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

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COURT:

In this matter, the defendant has been convicted after a trial before me of one count of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (c) of the Dangerous Drugs Ordinance, Cap 134, of the Laws of Hong Kong.

The particulars of the offence as set out in the indictment alleged that Chan Ernest on 2 April 2016 at Tin Yan Road, Tin Shui Wai, New Territories in Hong Kong unlawfully trafficked in a dangerous drug, namely 31.22 grammes of a crystalline solid containing 30.56 grammes of methamphetamine hydrochloride.

The facts which emerged in the course of the trial and which were obviously accepted by the jury by their verdicts are as follows.

In the early hours of the morning of 2 April 2016, two police officers were on patrol together in plainclothes in the vicinity of Tin Shui Wai Park. At about 0432 hours, in the vicinity of Ginza Plaza, they noticed a man and a woman walking from the direction of Phase 1, Ginza Plaza, towards Phase 2, Ginza Plaza. The conduct of these two persons aroused the officers’ suspicions. They were approached and intercepted.

The first officer, a Wat Ka-wing, referred to in the trial as PW1, revealed his police identity to them and searched this defendant. That search produced from the left pocket of the jacket he was wearing a large resealable plastic bag and three small resealable plastic bags. Inside those resealable plastic bags was apparently a transparent crystalline solid, which the officers suspected contained a dangerous drug.

The defendant was immediately arrested and cautioned for the offence of trafficking in a dangerous drug. In response to that caution, he said as follows: “Someone asked me to deliver the ‘Ice’ to Tin Shui Wai Park and said that I could get money after the delivery. I planned to buy some late-night snacks after the delivery, so I asked Lam Pik-yee to buy late-night snacks with me. The ‘Ice’ has nothing to do with Lam Pik-yee.”

As it transpired, Lam Ping-yee was the person who was together with the defendant, apprehended walking in the Ginza Plaza.

The defendant was returned to the Tin Shui Wai Police Station, where a Notice to Persons in Custody was served upon him. Subsequent to that, a post-record was made in the police notebook of PW1. That post-record was signed at various places by the defendant and at the conclusion a declaration was written by him in his own hand, confirming the truth of the contents of that statement and that he had no desire to make any additions to or alterations to it.

The crystalline substance was subsequently analysed by the Government Chemist and it was determined to be 31.22 grammes of a crystalline solid containing 30.56 grammes of methamphetamine hydrochloride, a drug commonly known as “Ice”. That drug had an alleged street value, which was part of the evidence in this trial, of some $9,400.

It was the prosecution’s case, which was accepted by the jury, that, when apprehended, the defendant was in possession of those drugs, intending to deliver them for a reward. He was, according to the prosecution and accepted by the jury, trafficking in those dangerous drugs.

It is not necessary for the purposes of this sentencing exercise to go through the defence case. That was clearly not accepted by the jury. It suffices to say that what did emerge in the course of the defence case was that the defendant was himself a user of methamphetamine hydrochloride. That much has been confirmed by his counsel and is referred to in an antecedent statement.

He has no prior convictions for offences involving dangerous drugs. He is now 23 years of age and was 21 at the time these offences were committed. He has been educated up to Form 4 level and was, it appears, at the time of the commission of these offences, gainfully employed.

It is regrettable that in those circumstances he has seen fit to engage in trafficking in dangerous drugs. On the basis of the evidence that was adduced in the trial, there could be no doubt that he was able to support his drug use from his earnings. He has, however, clearly resorted to trafficking to supplement those.

Mr Ma on his behalf readily acknowledges that there is no issue of youth insofar as sentencing is concerned. He is not a person of extreme youth, so the guidelines for sentencing, which are provided by the Court of Appeal, apply with full force to this defendant.

There are no mitigating factors which would permit me to provide to him any discount from the appropriate starting point for sentence.

The Court of Appeal has provided guidance to sentences for trafficking in methamphetamine hydrochloride. The first case in which such guidance was provided was the Attorney-General v Ching Kwok Hung [1991] 2 HKLR 125. Those guidelines were subsequently reviewed in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.

It suffices to say, for this quantity of methamphetamine hydrochloride, the appropriate starting point for sentence after trial is one of 8 years and 4 months’ imprisonment.

As I have earlier indicated, there are no factors which would enable me to reduce that starting point nor is there any discount to be provided for any reason.

In those circumstances, the sentence I impose is one of 8 years and 4 months’ imprisonment.