The defendant, Chan Kwok-ching, has been convicted after trial of one count of trafficking in a dangerous drug.
The jury, by a majority of 5 to 2, found that the defendant, on 17 April 2020, at the junction of Shantung Street and Portland Street, unlawfully trafficked in a dangerous drug, namely 82.2 grammes of a crystalline solid containing 47.2 grammes of methamphetamine hydrochloride.
The Facts
It was a stop-and-search case. At 1.25 am on 17 April 2020, at the junction of Shantung Street and Portland Street, PC22027 intercepted and seized from the defendant’s black sling bag and found the following items: (i) a green purse, (ii) inside the purse, three bags of dangerous drugs.
The police officer then arrested the defendant for the offence of trafficking in a dangerous drug and cautioned him. Under caution, the defendant said, “These three bags of drugs ‘Ice’ are bought for my own consumption.”
The three bags of dangerous drugs were later sent to the Government Laboratory for examination. They were found to be methamphetamine hydrochloride (or what is more commonly known as ‘Ice’) and the quantity was exactly the same as more particularly described in the indictment.
The defendant also had in his possession cash of HK$274 and one mobile phone with two SIM cards.
The estimated street value of the ‘Ice’ seized in April 2020 was $52,526 according to the expert evidence of a woman Inspector called by the prosecution. The defendant testified, however, that he bought the drugs only for $24,000. By the verdict, the majority of the jury must have rejected his evidence of this part.
In this trial, the defendant elected to testify and repeated what he said to the police under caution to the jury under affirmation and subjected himself to be cross-examined by the prosecution. Following the conviction by the majority, the jury must have accepted that he was knowingly in possession of all the dangerous drugs seized in this case for the purpose of trafficking, and have rejected his claim for self-consumption.
Antecedents
According to the antecedents statement, the defendant was born in Hong Kong. He is now 36. He was educated up to Form 3 level.
Between 2008 and 2019, the defendant appeared in court in no less than six occasions, and he was convicted of five counts involving dishonesty, including two counts of abstracting electricity, one count of theft, and two counts of burglary. There were also two counts of assault occasioning actual bodily harm and one count of criminal damage. There was, however, no drug-related conviction record.
Mitigation
Mr Pannu, counsel for the defendant, sets out in his written mitigation various matters in relation to the background of the defendant. He maintained what the defendant has said in court that before his arrest, he was working as a production manager of a crystal company and was earning a monthly salary of $33,000 to $34,000 and he was living with his girlfriend and her then-five-year-old son at a public housing unit at Shun Tin Estate.
Mr Pannu submits that given the quantity of ‘Ice’ involved, i.e. 47.2 grammes, and the sentencing tariff of the ‘Ice’, the appropriate bracket is 10 grammes to 70 grammes for which the sentence is from 7 years to 11 years. He submits the starting point in the case is in the region of about 9 years.
Mr Pannu also draws my attention to the steps of sentencing consideration in HKSAR v Herry Jane Yusuph, CACC 93/2019:
(i) The first step is to identify the relevant guideline bracket of the drug involved (see paragraph 57);
(ii) (2) The second step is to identify the role of the defendant (see paragraph 58);
(iii)To identify where in the band the defendant stands. The court may go outside the band depending on the circumstances of the commission of the offence and the role of the defendant (paragraph 69 to 72).
Mr Pannu submits that it is not clear if the jury in this case had convicted the defendant based on him being a courier delivering drugs or a seller who was in the course of selling drugs. It is submitted that in such circumstances, the court shall simply adopt the tariff as they are without any enhancement because of the role played by the defendant.
Finally, Mr Pannu also submits that although the defendant has said the drugs were for his own consumption, and no doubt it was rejected by five of the jurors. He submits however that because it is not known what the juror’s views on the urine test of the defendant, which indicated the presence of amphetamine, it is still uncertain whether or not the jurors found that some was for his own consumption and some were for trafficking, or whether none for his consumption.
Consideration
In sentencing the defendant, I have taken into consideration the nature of and the quantity of the drugs, the tariffs as set down in HKSAR v Tam Yi Chun, CACC 524/2011 (9 June 2014), the sentencing consideration as set out in Herry Jane Yusuph, the facts of the case, all the matters urged on the defendant’s behalf and the materials placed before me by Mr Pannu.
The offence of trafficking in a dangerous drug is a serious offence which carries a maximum sentence of life imprisonment and a fine of $5 million. Those who are convicted of the offence will be severely punished by the court.
The defendant pleaded not guilty and is convicted by a jury after trial. There will be no discount on account of his plea and remorse.
Mr Pannu is right to submit that given the quantity of the ‘Ice’ involved, i.e. 47.2 grammes, the defendant’s case falls within the band of 10 grammes to 70 grammes for which the sentence is from 7 years to 11 years.
I accept that the jury by their verdict, must have rejected the evidence of the defendant that he possessed the three bags of ‘Ice’ for his own consumption. The prosecution case, which the jury must have accepted by their verdict, was that the defendant possessed all the drugs for the purpose of trafficking.
As to the role of the defendant, given the evidence in this case is possession for the purpose of trafficking and there is no evidence of actual trafficking, it is difficult to establish the precise role of the defendant and to be fair to him, in the circumstances, I am prepared to sentence him on the basis of courier simpliciter without any further enhancement.
Given the role of the defendant was that of a courier, in my judgment, an initial starting point after trial of 9 years and 6 months’ imprisonment, is appropriate.
There are no aggravating factor.
As to the remaining issue or matter urged on behalf of the defendant by Mr Pannu that perhaps the jury by their verdict still accepts that the defendant possessed some of the drugs for his own consumption and hence the sentence maybe further reduced, one must remember what the Court of Appeal has said in HKSAR v Cheung Wai Man [2019] HKCA 731, that “in determining the issue of self-consumption, the sentencing court must first find that a ‘significant portion’ of the drugs were to be consumed by the defendant.”
According to my direction to the jury, I told the jury with no uncertainty that “the prosecution case is that the defendant possessed the whole quantity, i.e. 47.2 grammes of ‘Ice’ for the purpose of trafficking. On the other hand, the defendant’s case is that he possessed all the ‘Ice’ in this case for the purpose of his own consumption.”
By their verdict, the majority of jury must therefore have rejected the defendant’s case and accepted the prosecution case that all the 47.2 grammes of ‘Ice’ is for the purpose of trafficking.
Based on my direction, and by the verdict of the majority of the jury, in my judgment, there is now no room for the defendant to argue at this stage that the jury may still accept that he possessed some drugs for his own consumption. The issue of self-consumption is simply not established.
In any event, even if I accept that the defendant was an ‘Ice’ abuser because of the positive result of the amphetamine in his urine test by the CSD, Correctional Services Department, there is still no evidence, nor credible or reliable information and material, that substantiated that a significant proportion of the ‘Ice’ were for his own consumption. The fact in this case remains that the defendant was intercepted by the police in a public street with all three bags of ‘Ice’ worth over $50,000 carried by him in his sling bag and he had only with him at that time cash of HK$274. There was no ‘Ice’ consuming device found at his residence. By their verdict, the defendant’s explanation that he just bought the ‘Ice’ from a woman trafficker for $24,000 which he could be able to earn from his salary of his alleged employment as a manager in a crystal company must also have been rejected by the jury.
Having said all that, however, in HKSAR v Liu Ming Sze [2017] 1 HKLRD 297, the Court of Appeal held that a sentencing court, in any event, still has a discretion to discount a sentence to reflect an element of self-consumption.
In the end, I took into account the result of the urine test of the defendant which indicated that he was or might be an ‘Ice’ abuser before his arrest, and in these circumstances, I will adopt the starting point of 9 years 6 months’ imprisonment and I exercise my discretion to reduce the sentence by 3 months for self-consumption.
In my judgment, the sentence of 9 years and 3 months’ imprisonment, is a fair, just and balanced sentence in all the circumstances of the offence and also the defendant.
Sentence
For the reasons given, I sentence defendant to 9 years and 3 months’ imprisonment.