HKSAR v. CHAN KAI ON

DCCC 100/2023

[2024] HKDC 268

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 100 OF 2023

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REASONS FOR SENTENCE

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1.  Mr Chan pleaded guilty before me to one charge of Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. Particulars are that he, on 21 June 2022, outside Ground Floor, No 19G1 Nelson Street, Mong Kok, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 13.54 grammes of a solid containing 11.38 grammes of cocaine and 108.15 grammes of a solid containing 87.26 grammes of ketamine.

Facts admitted by Mr Chan

2.  On 21 June 2022, at about 11:42 am, on a road outside G/F, 19G1 Nelson Street, Mong Kok, Mr Chan was driving a black van in a zigzag fashion.  Police on patrol duty stopped the van.  Police asked Mr Chan to get off.  Mr Chan opened the door.  He was forcibly removed from the van.

3.  Police conducted a search on Mr Chan.  From his left hand were found 10 transparent re-sealable plastic bags containing a total of 1.49 grammes of a solid containing 1.19 grammes of cocaine.

4.  Mr Chan was arrested for trafficking in dangerous drugs.  Under caution, he said the dangerous drugs were for his self-consumption.

5.  Police then searched the van.  From the storage compartment of the driver’s door were found one pink zipper bag and one black zipper bag.

6.  Inside the pink zipper bag, the police found:-

(a)  17 transparent re-sealable plastic bags containing a total of 11.5 grammes of a solid containing 8.87 grammes of ketamine;

(b)  18 transparent re-sealable plastic bags containing a total of 12.3 grammes of a solid containing 10.7 grammes of ketamine;

(c)  One transparent re-sealable plastic bag containing 0.67 gramme of a solid containing 0.54 gramme of ketamine; and

(d)  3 transparent re-sealable plastic bags containing a total of 0.43 gramme of a solid containing 0.37 gramme of cocaine.

7.  Inside the black zipper bag, the police found:-

(a)  One transparent re-sealable plastic bag containing traces of a solid containing ketamine;

(b)  One transparent re-sealable plastic bag containing 0.22 gramme of a solid containing 0.19 gramme of ketamine;

(c)  One transparent re-sealable plastic bag containing 0.06 gramme of a solid containing ketamine;

(d)  One transparent re-sealable plastic bag containing 2.58 grammes of a solid containing 1.32 grammes of ketamine;

(e)  12 transparent re-sealable plastic bags containing a total of 32.0 grammes of a solid containing 23.8 grammes of ketamine;

(f)  3 transparent re-sealable plastic bags containing a total of 8.12 grammes of a solid containing 7.04 grammes of ketamine;

(g)  One transparent re-sealable plastic bag containing 13.7 grammes of a solid containing 11.9 grammes of ketamine;

(h)  One transparent re-sealable plastic bag containing 13.5 grammes of a solid containing 11.2 grammes of ketamine;

(i)  One transparent re-sealable plastic bag containing 13.5 grammes of a solid containing 11.7 grammes of ketamine;

(j)  One transparent re-sealable plastic bag containing 0.14 gramme of a solid containing 0.12 gramme of cocaine; and

(k)  One transparent re-sealable plastic bag containing 0.08 gramme of a solid containing paracetamol which is not controlled under the Dangerous Drugs Ordinance, Cap 134.

8.  Next, the police found in the storage compartment under the steering wheel a white zipper bag which contained:-

(a)  19 transparent re-sealable plastic bags containing a total of 2.89 grammes of a solid containing 2.49 grammes of cocaine;

(b)  7 transparent re-sealable plastic bags containing a total of 1.12 grammes of a solid containing 0.94 gramme of cocaine;

(c)  30 transparent re-sealable plastic bags containing a total of 4.45 grammes of a solid containing 3.83 grammes of cocaine; and

(d)  20 transparent re-sealable plastic bags containing a total of 3.02 grammes of a solid containing 2.44 grammes of cocaine.

9.  The following items were also found in the storage compartment next to the driver’s seat:-

(a)  One iPhone with two SIM cards;

(b)  One Samsung mobile phone with two SIM cards; and

(c)  Cash of $1,400.

10.  Police arrested Mr Chan again for trafficking in dangerous drugs, in respect of the drugs found in the van.  Under caution, Mr Chan said that they were for his self-consumption.

11.  Back at the police station, a further search of Mr Chan uncovered HK$14,062.20 and MOP$10 on his person.

12.  In a cautioned VRI conducted the next day, Mr Chan said:-

(a)  He would sell the dangerous drugs; he would consume any leftovers which could not be sold;

(b)  The dangerous drug in his hand was ketamine; those in the van were cocaine and ketamine;

(c)  Through a website, he came to know of a drug seller; in the morning on day of arrest, the seller contacted him; at 8 am, he met the seller in Tak Wah Street, Tsuen Wan, to purchase the subject drugs; the seller put the drugs on his van; he paid the seller $5,000;

(d)  He put the drugs in the zipper bags; the zipper bags were put in the storage compartment of the driver’s door, as well as the storage compartment under the steering wheel;

(e)  He gained a profit of around $100 for selling the dangerous drugs;

(f)  His customers would usually call his phone number; but their phone numbers would not be shown;

(g)  He has rented the van for about 2 months already at a monthly rent of about $7,000;

(h)  He was waiting for a customer before being stopped by the police;

(i)  The 10 plastic bags he was holding in his hand were intended to be stored inside the van; and

(j)  He did not have the habit of taking any type of drug.

13.  The estimated market price of the drugs in the case was $75,853.38.

14.  The van was in fact owned by a car rental company which had let it to Mr Chan since May 2021.

15.  Mr Chan now admits he possessed the dangerous drugs in this case for the purpose of unlawful trafficking.

Criminal record

16.  Mr Chan has two previous convictions neither of them similar.  He has never been sentenced to serve a prison term.

Antecedents

17.  Mr Chan is aged 50 (almost 49 at the time of the offence), educated to F2 level, was a site worker.  He is married with a son (8)  and daughter (7).

Mitigation

18.  Mr Michael Cheung of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chan.  The following is a summary of the mitigation submissions.

19.  Mr Chan pleaded guilty to the charge.  He has two previous unrelated criminal convictions.  The last conviction was about 25 years ago and involved the sale of pirated DVDs.

20.  Mr Chan is married.  His wife (34)  is a housewife.  She came to Hong Kong in 2018.  They have two children.  Ever since Mr Chan was placed in remanded custody, the family relies on CSSA for living expenses.

21.  Mr Chan used to work as a demolition worker on construction sites, but lost his job due to COVID-19.  He then started to work as a casual driver and manual labourer, earning a daily wage of $600.  He worked 2 days a week, earning a monthly income of a little over $5,000. Despite receiving low-income CSSA, Mr Chan could not make ends meet.  The main reason for committing the offence was therefore economic.

22.  Mr Chan’s instructions are that he had no prior habit of using any drugs so he could not understand why he was tested positive for methamphetamine at Lai Chi Kok Reception Centre.

23.  Mr Chan has been in custody since arrest.  He deeply values his freedom and hopes for a lenient sentence so he may re-unite with his family early.  He aspires to start anew and to turn over a new leaf.

24.  The court is invited to sentence Mr Chan (as courier)  according to the applicable guidelines (also for couriers)  laid down in R v Lau Tak Ming [1991] 2 HKLR 370 and Attorney General v Pedro Nel Rojas [1994] 1 HKC 342 (for cocaine)  and Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 and HKSAR v Sin Chung Kin [2013] 1 HKLRD 622 at para 22 (for ketamine)  – see HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 at para 59.

25.  It is submitted that the combined approach should be adopted, and the methodology in HKSAR v Islam SM Majharul [2020] 3 HKLRD 146 be followed in order to arrive at a reasonable and realistic starting point.

26.  Mr Cheung worked out the various results arithmetically as follows.

27.  Individually, the 11.38 grammes of cocaine calls for 61.24 months; 87.26 grammes of ketamine calls for 77.37 months.

28.  The results of the 3 cross-checking tests are:-

(a)  Absurdity test: 98.64 grammes of cocaine calls for 111.56 months; 98.64 grammes of ketamine calls for 79 months;

(b)  Conversion test: 119.33 grammes of ketamine calls for 81.98 months; 40.68 grammes of cocaine calls for 87.61 months; and

(c)  Ratio test: cocaine ratio 11.38/98.64 x 111.56 + ketamine ratio 87.26/98.64 x 79 = 82.75 months.

29.  It is submitted that the appropriate sentence should be in the range of roughly 82.75 months to 87.61 months, being the results of the ratio and (cocaine)  conversion tests.

30.  The court is asked to adopt as low a starting point as possible so Mr Chan can be released sooner to re-unite with his family.

31.  Mr Cheung confirmed that Mr Chan is not relying on self-consumption as a mitigation ground.

Sentence

32.  Drug trafficking is a serious offence for which heavy tariff sentences are called for.  Trafficking in more than one type of serious drug is itself an aggravating factor.

33.  I have had regard to all that were held in Herry Jane Yusuph and Islam SM Majharul (both supra).

34.  The offender playing the role of more than a courier and storekeeper is another aggravating factor.

35.  I find that Mr Chan was an actual trafficker from the following facts:-

(a)  The drugs came in different quantities in a large number of re-sealable plastic bags;

(b)  Mr Chan was driving a rented vehicle;

(c)  He was driving in a zigzag fashion just before he was stopped;

(d)  He was seen holding 10 re-sealable plastic bags containing cocaine after the vehicle stopped;

(e)  He had large amount of cash on him;

(f)  He told the police he had paid a seller for the drugs;

(g)  He told the police he intended to sell the drugs to his customers for a profit; and

(h)  He told the police he was waiting for a customer at the material time

36.  This finding means that a higher starting point than the norm is called for.

37.  I adopt the combined approach of sentencing.  I adopt an initial starting point of 83 months.  Because of the presence of the two aggravating factors, I increase it by 4 months to 87 months[1].

38.  Mr Chan pleaded guilty in good time earning for himself the full 1/3 discount in sentence.  There are no other mitigating factors of weight to justify another reduction in sentence.

39.  The resulting sentence would be well below the jurisdictional limit of the District Court and therefore would be a meaningful discounted sentence on a plea of guilty.

40.  Considering the scale of, and the use of a vehicle in, the drug trafficking activity, an application of the totality principle would not detract me from imposing the resulting sentence on Mr Chan.

(Mr Chan, please stand)

41.  The sentence for Mr Chan is 58 months’ imprisonment.