HKSAR v. CHAN HO YIN, WALLIS

HCCC 361/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 361 OF 2015

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

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COURT: The defendant, Mr Chan Ho-yin Wallis, pleads guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The particulars of offence are that the defendant on the 23rd day of March 2015 at Hung Hom, Kowloon in Hong Kong, unlawfully trafficked in dangerous drugs, namely 12.7 grammes of a crystalline solid containing 12.5 grammes of methamphetamine hydrochloride and 0.05 grammes of a powder containing ketamine.

Facts admitted

At about 0440 hours on 23 March 2015, police officers intercepted a taxi at Hung Hom, Kowloon, and searched the defendant who boarded the taxi at To Kwa Wan on the way to Chun Shek Estate.

Inside the defendant’s rucksack, police officers found two plastic bags containing a total of 12.7 grammes of a crystalline solid containing 12.5 grammes of methamphetamine hydrochloride, commonly called ‘Ice’. One paper packet containing 0.05 grammes of a powder containing ketamine; one electronic scale; some plastic straws; one glass straw; one measuring cup; four pieces of plastic nozzles; one glass and four plastic inhaling devices were also found inside the rucksack.

Under arrest and caution the defendant said, “The dangerous drug is for my own consumption”. He also said, “The tools are used for taking dangerous drug”.

In the video-recorded interview subsequently conducted, the defendant claimed that he had bought the dangerous drugs earlier on for $2,500 and the inhaling device for $300. He lived in Aberdeen and had gone to Kowloon City Pier for fun. When he was intercepted, he was heading to Sha Tin to meet his friends and he would share the dangerous drug with his friends who might pay him $100 for it.

Criminal record

The defendant has a clear criminal record.

Mitigation

The defendant is aged 33, received education up to Form 5, single, and is living with his parents and two brothers. According to counsel for the defendant, the defendant maintains a close relationship with his family members who are supportive of the defendant. The mother and elder brother and some relatives are in court to encourage the defendant.

The defence counsel says that the defendant had worked as an office boy in a law firm, and in 2001 joined the Hong Kong Bank as a clerk. He quit the job when he was diagnosed as suffering from psychosis in 2014. He started to live off his savings and also depends on the financial support of his family.

He was addicted to ‘Ice’ since 2013 and spent about $2,500 a month for his baneful habit. His family members knew about his drug addiction and had urged him to stay away from dangerous drugs. Because of that, the defendant did not consume dangerous drugs at home.

The defendant purchased the dangerous drugs in question about one to two days before he was arrested and he would share the drugs with his friends who might pay him money. The defendant finds it difficult now to quantify the amount of dangerous drugs which were for his own consumption.

When the court indicates to the defence counsel that the court does not accept the mitigation that part of the dangerous drugs were for the defendant’s own consumption, the defendant’s counsel says that the defence will not take the matter any further but still urges the court to accept the possibility that part of the drugs were for the defendant’s own use.

The defence counsel goes on to point out that the defendant is now remorseful and he also stresses that the amount of ketamine involved in this case is so small that they are negligible. Defence counsel asks the court to be lenient to the defendant.

Sentence

The Court of Appeal laid down new sentencing guidelines for trafficking in ‘Ice’ in HKSAR v Tam Yi Chun CACC 524/2011. For a quantity of 10 to 70 grammes of ‘Ice’, the starting point is 7 to 11 years’ imprisonment. The amount of ‘Ice’ involved in this case is 12.5 grammes. The starting point is, therefore, 7 years and 2 months’ imprisonment.

The court does not accept that part of the dangerous drugs were for the defendant’s own consumption because he was unemployed at the time of his arrest. Although the defence counsel has tried to convince the court that the defendant could afford the drugs because he was living on his own savings and expenses given to him by his family, the court is of the view that it is difficult to accept that the defendant would, under such circumstances, purchase such a large amount of dangerous drugs.

Furthermore, when the defendant was arrested it was in the middle of the night and the defendant was travelling on board of a taxi when his finance was obviously not on very sound footing. And, more importantly, if he was only prepared to share with his friends some of the dangerous drugs, it was unlikely that he would have taken along all the dangerous drugs with him to his friend’s place.

The court is of the view that the defendant was either selling the drugs and the smoking devices to other people, or on the way delivering them.

The court finds no justification not to follow the sentencing guidelines, thus adopting 7 years and 2 months imprisonment as the starting point.

As rightly pointed out by the defence counsel, the amount of ketamine involved in this case is negligible. Even if the ketamine had been the more potent drug of ‘Ice’, very little difference, if any, would be made to the ultimate sentence in the present case.

The court is therefore of the view that there is no need to enhance the starting point because of the ketamine. Giving credit to the defendant for his plea of guilty, the court sentences him to 4 years and 9 months’ imprisonment.