HKSAR v. CHAN CHI WAI

DCCC 751/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 751 OF 2012

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs" (Charge 1), a charge of "Possession of Part I Poison" (Charge 2) and a charge of "Possession of a dangerous drug" (Charge 3).

Summary of Facts

2.  In the early hours on 1 June 2012, a group of police officers were observing outside Room 110, Block 4, Po Tin Estate, Tuen Mun ("the Flat").  About 1:00 am, they saw the door of the Flat being opened and gained entry into the Flat.  They found the defendant and 4 other persons inside.

3.  Upon search, the following items were found in the living room of the Flat[1] :-

(i) a plastic box containing: 15 packets of suspected heroin (Exhibit 2); a plastic bag containing suspected heroin (Exhibit 3); 3 plastic bags respectively marked with Chinese characters "2 grammes", "2 grammes" and "3 grammes" containing suspected heroin (Exhibits 4 to 6); 2 plastic bags containing suspected ICE (Exhibit 7); 4 plastic bags containing suspected ICE (Exhibit 8); 2 tablets of suspected Part I Poison (Exhibit 9) and 1 plastic straw segment containing suspected ICE (Exhibit 10);

(ii) 2 plastic bottles containing liquid of suspected ICE (Exhibits 13 and 14);

(iii) a plastic box containing an electronic scale (Exhibit 15) and 2 plastic bags containing a total of 200 plastic bags; and

(iv) a black paper bag containing 120 pieces of straw.

4.  Exhibits 2 to 6 were later found to contain a total of 17.35 grammes of a mixture containing 11.33 grammes of heroin hydrochloride.  Exhibit 7 was found to contain a total of 2.95 grammes of a crystalline solid containing 2.88 grammes of methamphetamine hydrochloride. Exhibit 9 was found to contain 2 tablets containing perindopril, which is a Part I Poison.  Exhibits 8, 10 and 15 were found to contain traces of a powder containing methamphetamine.  Exhibits 13 and 14 were found to contain a total of 106 millilitres of a liquid containing traces of methamphetamine.

5.  After being arrested and cautioned, the defendant remained silent.  After a short while, he suddenly said "Ah Sir, the drugs are mine."  In a written Record of Interview, he admitted that he purchased the heroin and ICE in Mongkok 2 days ago at $8,000 and $1,500 respectively.  He has been residing in the Flat for about a month and had the key to the premises.  Apart from self-consumption, he provided drugs to 2 of the 4 persons found in the Flat free of charge.  He used the 2 plastic bottles to consume ICE.

6.  The defendant now admits that he possessed Exhibits 2 to 6 and half the quantity of Exhibit 7, namely 1.44 grammes of ICE, for the purpose of trafficking.  He possessed the other half of Exhibit 7 for self-consumption. 

Mitigation & Sentence

7.  The defendant is now 43.  He is single and lives alone.  He has 31 conviction records which include 16 offences of "simple possession" and 2 offences of "trafficking".  His last conviction is dated September this year; he was sentenced to 6 months' imprisonment for "simple possession".  The earliest day of discharge is on 10 November (4 days from today). 

8.  Defence lawyer Mr. FUNG informed me that after completing P.6 education at the age of 15, the defendant became a transportation worker.  At the age of 18, he began to take drugs, which explains his long history of addiction.  A letter written by the defendant was placed before me; its contents are duly noted.  

9.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment.

10.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in heroin (see  The Queen v LAU Tak-ming & others [1990] 2 HKLR 370) and ICE (see A-G v CHING Kwok-hung [1991] 2 HKLR 125).  For 10 to 50 grammes of heroin, the sentence ranges from 5 to 8 years' imprisonment.  For up to 10 grammes of ICE, the sentence ranges from 3 to 7 years' imprisonment.  In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v YIP Wai-yin & another CACC 80/2003 and HKSAR v CHENG Yat-ming CACC 455/2006.

11.  In Charge 1, the defendant trafficked in a cocktail of drugs consisting of 11.33 grammes of heroin and 1.44 grammes of ICE.  For 11.33 grammes of heroin, the appropriate starting point is 5 years.  For 1.44 grammes of ICE, the appropriate starting point is 3 years.  In the present case, had the whole quantity of the cocktail been the more serious drug (i.e. 12.77 grammes of ICE), the starting point would have been 7 years.  Based on the nature and quantities of the cocktail components, instead of simply adding 5 years onto 3 years, I consider that the "combined" approach would arrive at a realistic and fair sentence. 

12.  To adequately and accurately reflect the seriousness of the drugs involved as well as the more potent and harmful effect of a cocktail drug, I adopt a starting point of 6.5 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 52 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence for Charge 1 is 4 years and 4 months.

13.  For Charge 2, the defendant possessed 2 tablets of perindopril.  I adopt a starting point of 6 days' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 4 days.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence for Charge 2 is 4 days.

14.  For Charge 3, the defendant possessed 1.44 grammes of ICE.  I adopt a starting point of 9 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 6 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence for Charge 3 is 6 months.

15.  Charges 1 to 3 arose from the same incident.  Furthermore, the extra 1.44 grammes of ICE in Charge 3 would add no significance to the sentence in Charge 1 even if the defendant had trafficked in that additional quantity.  Hence, I order the sentences for all 3 charges to run concurrently, arriving at a total prison term of 4 years and 4 months.

16.  Regarding the existing sentence in TMCC 2288/2012, that case and the present case are separate and distinct.  Having considered the totality principle and albeit with only 4 days left in the sentence in TMCC 2288/2012, I order the sentences in the present case to run consecutive to that case.