HKSAR v. CHAN WING, TOBY

HCCC 470/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 470 OF 2015

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

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COURT:

Defendant, you have pleaded guilty to a charge of trafficking in dangerous drugs, contrary to Section (4)(1)(a) and (3) of the Dangerous Drugs Ordinance.

You have admitted on 6 March 2015, at Noble Hotel, Pollock Building, in Tak Hing Street, Yau Ma Tei, you unlawfully trafficked in 27.19 grammes of a powder containing 6.59 grammes of ketamine; 16.09 grammes of a powder and a solid containing 10.21 grammes of cocaine; 12.88 grammes of a crystalline solid containing 12.73 grammes of methamphetamine hydrochloride; and 33 tablets containing 0.33 grammes of nimetazepam.

Shortly before midnight of 6 March, police officers conducted an operation at the Noble Hotel. They gained entry to Room 530, where they found a lady surnamed Hui, together with two other men.

Inside that room, the drugs ketamine and a bottle adapted for the inhalation of methamphetamine was found. That bottle was found on the bed and a further two bottles used for inhalation of methamphetamine and a measuring cup containing a plastic spoon was found in a wooden cabinet.

Inside that hotel room, they found a key for another room in the same hotel, that is, Room 527. When the police entered that room, it was all dark and you, defendant, was found inside that room, sleeping there, and another man was also there. The majority of the drugs as stated in the charge were found in that room, contained in many plastic bags. Also found in the room was a bottle adapted to be used for inhalation of methamphetamine, as well as four glass tubes, an electronic scale, and a box of empty, transparent resealable plastic bags, and two notebooks containing details of drugs transactions.

Under caution, you said that all the dangerous drugs on the table belonged to you, and had nothing to do with anyone. You claimed that you’d been living at that hotel for almost three months, and the bottle found in the room was used by you to inhale “Ice”. The soda water was used as a mixing agent in order to add weight to the ketamine for a better price. The empty transparent resealable plastic bags were used to pack drugs for sale. The electronic scale was used to weigh the drugs to the desired quantity for your customers.

You sold 1 gramme of “Ice” for $200 to $300, you admitted to making the 28 capsules containing cocaine. In addition, you have placed cocaine powder into the four cigarettes found, selling them at $100 each. The cash of $64 found in your possession, you claimed, was money left over after you had purchased the drugs, and you had used around $10,000 to buy the cocaine, around $2,000 for the “Ice”, and $300 for each packet of “Erimin 5”.

The lady next door, Hui, you claimed was your friend who had bought ketamine from you. You had passed the key to Room 527 to her, and you admitted selling Hui ketamine found inside the other room, 530, and you also told Hui that a man would come up to look for you later, and that man would smoke “Ice” in Room 530. You admitted that the bottles found in that room were for customers to consume “Ice” in there, and the notebook contained details of your drugs transactions. The estimated street value of the dangerous drugs seized in both rooms was $26,961.

The hotel staff there confirmed you had stayed in Rooms 527 and 530 for about three months, and you had specifically requested there by no housekeeping service.

You are 29 years of age, and have three previous convictions for possession of dangerous drugs. On each occasion, you were sentenced to the Drug Addiction Treatment Centre, which were in 2009, 10 and 13 respectively. You were unemployed at the time of your arrest, and married with a young son.

Ms Monica Chow, your counsel, has mitigated fully and thoroughly on your behalf. I have taken into account all that she has had to say. I have also had regard to the contents in your own mitigation letter, and of the remaining mitigation letters that were submitted to me by your mother and various people of the church, including a deacon, a priest and the cardinal Joseph Zen.

Ms Chow has, in a nutshell, pointed out that you became involved in drugs as you had struggled with the stress in your life, turning first to gambling, incurring high debts, then taking drugs not to face the debts you had accumulated. Despite your various treatments in a drug treatment centre, that did not help. You resorted to drugs, and as Ms Chow’s words were, using drugs, you were like an ostrich sticking your head in the sand and trying to avoid all the difficulties around you.”

You have a son aged 4, who is now in foster care, and it appears that he is also facing some learning difficulties, and generally speaking, having realised the seriousness of taking drugs, you have promised to turn a new leave, stop taking drugs and become a more responsible mother and daughter.

Ms Chow correctly referred me to the tariff cases in respect of trafficking in these various drugs. Ms Chow has informed me that you are drug dependant, or were a drug dependant at the relevant time. She stated that for the 12 bags listed in paragraph 3 of the Summary of Facts, 7 of the smaller bags wrapped up in chewing gum wrapper was equivalent to about 3.46 grammes of “Ice”, was intended for your own use. This amounted to about 27 per cent of the total amount of drugs. Ms Chow said, however, that if you had sold all the drugs intended for sale, you would have resorted to selling your own stash to sell more. Ms Chow referred me to the case of Chow Chun Sang CACC 135/2011, asking this court to grant you a discount, as part of the drugs were for your own consumption. Chow Chun Sang was recently considered by the Court of Appeal in the case of Tam Ling Yuen CACC 159/2015. It was clear in that case, and the court they are referring to, Wong Suet Hau, that any discount given for defendants’ own consumption was where it is accepted, and I quote from paragraph 26:

“That a significant portion of the drugs were for the defendant’s own consumption.”

I do not consider this amount of 27 per cent a significant portion of the drugs, and in those circumstances, I do not consider a discount is warranted in this case for that, for your own consumption, even though I accept that you are, or were a drug dependant, and the Lo Wu Correctional Institution, having conducted a urine test when you were admitted on 10 March, found that you were positive, and amphetamine in your urine.

The facts of this case, in fact, show that you were running quite a serious drug den, making drugs as well as having customers there consuming, providing a place for customers to consume drugs. Not only were you providing a place for customers to smoke drugs, you were selling drugs to them. Really, a one-stop shop. As Ms Chow said, it is fortunate that you have not been charged with other offences in relation to those facts.

I had given some consideration as to whether your starting point should be enhanced in view of those facts. However, in the circumstances of this case, I do not think an enhancement is appropriate. In the present charge for trafficking in dangerous drugs, there were four different types of drugs. There were 6.59 grammes of ketamine, there was also 0.33 grammes of nimetazepam.

In Wong King Kau [2010] 4 HKC 443, the court held there that nimetazepam was as dangerous as ketamine and Ecstasy, and the guidelines regarding ketamine and Ecstasy should apply to this drug as well. In that case, I will add up the two together, which would make 6.86 grammes of ketamine. The guidelines for sentencing in ketamine is that of Secretary for Justice v Hii Siew Cheng.

There were 10.21 grammes of cocaine. The relevant tariff case is that of Lau Tak Ming.

The other drugs, remaining drug, is that of “Ice”, of which there was 12.73 grammes, and the relevant tariff case for “Ice” is that of Tam Yi Chun.

Although “Ice” and cocaine are similar types of drugs, I take the combined approach for sentence, and consider that “Ice” is the more potent or serious drug. I then would adopt the conversion test, so that I will use a single tariff for “Ice” to be applied to the entire quantity of drugs. Therefore, in the present case, we have 6.86 grammes of ketamine, following the tariffs in Hii Siew Cheng, that would warrant a starting point of 3 years’ imprisonment after trial. That sentence is similar to that which would be imposed for trafficking in 1 gramme of “Ice”.

Trafficking in cocaine of 10.21 grammes, in following Lau Tak Ming, that would attract a starting point of 5 years’ imprisonment after trial. That term of imprisonment would be imposed for trafficking in 5 grammes of “Ice”. I will then add the converted quantities, that is of 1 gramme plus 5 grammes, together with the 12.73 grammes of “Ice”, which equals to 18 grammes of “Ice”. In applying the tariffs in Tam Yi Chun, in sentencing for 18 grammes of “Ice” after trial, I would have taken a starting point of 7 years and 3 months’ imprisonment.

You have pleaded guilty to this offence, and the one-third discount will apply, and you shall be sentenced to 4 years and 10 months’ imprisonment.