HKSAR v. PANG CHI-YIP

HCCC 450/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 450 OF 2016

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REASONS FOR SENTENCE

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1.  Following the defendant pleas of guilty to offences of trafficking in a dangerous drug and possession of dangerous drugs in the Magistrates Court on 4 November 2016, his case was committed to the Court of First Instance for sentence.

2.  The facts giving rise to the offences are set out in the summary of facts agreed to by the defendant.  In the afternoon of 23 January 2016, police attended the flat where the defendant was residing as a result of a complaint that there had been a disturbance at the residence. Initially, the defendant tried to prevent the police officers from entering the flat, but eventually they were able to gain entry after subduing him.  There was another male in the flat sitting on a bed.  The police search the flat.  They found on the table next to the sofa a red and black box containing 18 transparent plastic bags containing 12.73 g of a crystalline solid containing 12.52 g of Ice; a green container containing one plastic bag containing 0.08 g of a solid containing cocaine and one plastic bag containing 0.24 g of plant material containing 0.10 g of herbal cannabis; an electronic scale; a blue and white container which had inside a large number of resealable plastic transparent bags; and two pieces of paper on which was handwritten the names of people and sums of monies that were owed.  Also found in the flat was a waist bag containing $14,990, a mobile phone, an octopus card, keys to the flat and a letter from the Social Welfare Department addressed to the defendant care of the flat.

3.  In a subsequent video recorded interview, the defendant admitted that he lived alone in the flat and that all the drugs and other items found there belonged to him.  He acknowledged that he was the recipient of welfare benefits.  He said he purchased the Ice from a person called “Ah Keung” and had divided the drugs up for his own consumption.  He said the cocaine and herbal cannabis was given to him by his friend, which were also for his own consumption.  The estimated retail value of the Ice at the time of the offence was $3,908.  The defendant by his admission of guilt now admits and accepts that the Ice was for the purpose of trafficking.  He does not persist with the claim that the Ice was for his own consumption.

4.  The defendant is 52 years of age.  He is unemployed and lives alone.  It was brought to my attention at the last hearing that he had recently suffered a series of serious illnesses.  I adjourned sentencing of the defendant in order to obtain medical reports about the defendant’s state of health.  The medical reports confirmed that he has been seriously ill, having been diagnosed with carcinoma of the lung with brain metastasis.  He has undergone surgery to his lung in 2013 and brain in 2015. He has made good recovery with follow up treatment.  It appears there has been no recurrence of the cancer. 

5.  The defendant admits that he is a drug addict. He has a number of prior drug and related convictions dating back to December 1984.  His last prior conviction was in July 2013 for trafficking in a dangerous drug.  He was sentenced to 3 years and 2 months’ imprisonment.  He was released from custody in relation to that offence on 18 April 2015. 

6.  There is very little if anything that can be advanced on his behalf by way of mitigation except for his pleas of guilty and the serious illnesses that he has suffered in recent times.  It was urged upon me to take into account his medical condition which has led him to depend on drugs.  I will bear this in mind in the sentence that I will impose upon him.

7.  The trafficking offence concerns 12.73 g of a solid containing 12.52 g of Ice.  The possession offence concerns 0.08 g of a solid containing cocaine and 0.24 g of a plant material containing 0.10 g of herbal cannabis.

8.  The Court of Appeal in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 revised the sentencing tariffs for a person convicted of trafficking of Ice as contained in AG v Ching Kwong Hung [1991] 2 HKLR 125.  The new tariffs apply in this case.  The narcotic content of Ice of 12.52 g falls within the band of 10 to 70 g where the sentence after trial ranges from 7 to 11 years’ imprisonment.  I will adopt for this quantity of drugs, a starting point of 7 years’ imprisonment which I discount by one-third for his plea at the earliest opportunity to 4 years and 8 months’ imprisonment.  In relation to the possession offence, I adopt a starting point of 12 months’ imprisonment which I also discount by one-third to 8 months’ imprisonment. 

9.  Taking into account the totality principle and the circumstances of the defendant, I order that the sentence for the possession offence run concurrently to the sentence for the trafficking offence.  I have borne in mind that the drugs found in the defendant’s possession, had they been included in the trafficking offence would not have made a marked difference to the sentence that I have imposed.

10.  Accordingly, the defendant will serve a sentence of 4 years and 8 months’ imprisonment.