HKSAR v. CHAN YUK WING

DCCC 857/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 857 OF 2016

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REASONS FOR SENTENCE

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Charges

1.  The defendant faced a total of 7 charges.  All of which were committed on 23 December 2015.  He pleaded guilty to:-

(i) Charges 1 and 4:

Possession of poisons included in Part I of the Poisons List, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap 138;

(ii) Charges 2 & 3:

Possession for sale or for a purpose of trade or manufacture goods to which forged trade marks are applied, contrary to sections 9(2) and 18(1) of the Trade Descriptions Ordinance, Cap 362; and

(iii) Charge 5:

Trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The remaining charges, namely Charges 6 and 7, were ordered at the request of the prosecutions to be kept on file, not to be proceeded with without the leave of the court. 

Facts

3.  The facts to which the defendant pleaded guilty show that on 23 December 2015, he arrived at the Freedom Mini Storage, a godown in Kwun Tong.  The godown was divided into a number of small storerooms and he was found inside store L012 of the godown.  He was intercepted by the customs officers.  Upon enquiry, he admitted handling pharmaceutical products inside store L012. 

4.  Upon search, there was one type of Part I poison found inside a bag which he carried, and 4 different types of Part I poisons in store L012.  This is Charge 1. 

5.  A forged trademark “Viagra” was applied to each of 47,575 tablets of sildenafil, a type of Part I poison found in store L012.  This is Charge 2.

6.  Under caution, he admitted, inter alia, that he rented store L012 and he had the keys to it.

7.  He informed the Customs officers that he had rented another warehouse. He then led the officers to store 8155, Luen Tat Mini Storage in Kwun Tong. The officers found therein 9 types of Part I poisons including sildenafil. This is Charge 4.

8.  A forged trade mark “Viagra” was applied to each of the 50,280 tablets of sildenafil, and another forged trade mark “C20” was applied to each of the 29,367 tablets of sildenafil found in the store.  This is Charge 3.

9.  Besides, he was found to have in his possession in store 8155 32,516 tablets of 5 different types of dangerous drugs as particularized in Charge 5.

10.  To summarize, there were 427,784 tablets (Charge 1: 49,357 tablets + Charge 4: 378,427) of Part I poison and 32,516 tablets of dangerous drugs involved in Charges 1, 4 and 5 and the total value was HK$2,945,370.

11.  The Part I poisons and the dangerous drugs involved in all these charges are best described in the table below.  So there is a table setting out in the first column the charge; second column: offence; third column: particulars; and fourth column: estimated value.  Please bear with me that I have to recite the contents of the table.

Charge	Offence	Particulars	Estimated Value
1	Possession of Part I poison	(i) 1,002 tablets of zopiclone (ii) 45,757 tablets containing sildenafil (iii) 60 tablets containing gefitinib (iv) 360 tablets containing sorafenib (v) 360 tablets containing imatinib	49,357 tablets of 5 different types of Part I poison Value:- HK$384,200
2	Possession for sale or for a purpose of trade or manufacture to which forged trade mark applied	47,575 tablets containing sildenafil each of which contained a forged trademark “Viagra”	Value: HK$348,000 (the value of sildenafil is included in Charge 1 as well)
3	Possession for sale or for a purpose of trade or manufacture to which forged trade mark applied	50,280 tablets containing sildenafil each of which contained a forged trademark “Viagra” sildenafil 29,367 tablets, containing sildenafil each of which contained a forged trademark “C20”  Total: 79,647 tablets	Value: HK$583,000 (the value of sildenafil is included in Charge 4 as well)
4	Possession of Part I poison	(i) 79,647 tablets, sildenafil (Viagra + C20) (ii) 19,563 tablets, gefitinib (iii) 29,540 tablets, sibutarmine (iv) 710 tablets, tramadol (v) 60,129 tablets, clomipramine (vi) 184,314 tablets, zopiclone (vii) 4,524 tablets, nefopam (viii) 1 bottle of crystalline solid containing nercuric choloride (ix) 1 bottle of powder containing theophylline	378,427 tablets 1 bottle of crystal solid 1 bottle of powder Value: HK$2,351,820
5	Trafficking in dangerous drugs	(a) 526 tablets, 0.85g of bromazepam (b) 998 tablets, 0.45g of clonazepam (c) 1571 tablets, 1.244g of lorazepam (d) 316 tablets, 4.12g of midazolam (e) 29,104 tablets, 330.72g of diazepam	32,516 tablets Value: HK$209,350

Previous convictions

12.  The defendant has 2 previous convictions in 1995 ie trafficking in a dangerous drug and possession of a dangerous drug for which he received a total of 18 months’ imprisonment.  Also, he has a previous conviction in 1999 ie unlawful sale of Part I poison for which he received a suspended sentence and a fine.  For sentencing purpose, I will not take into account his previous convictions for the offences were committed a long time ago.

Antecedent

13.  The antecedent statement showed that he was arrested on 23 December 2015 and detained.  On 31 December 2015, he was bailed out.

Pharmacy report

14.  Miss Yuen for the prosecution submitted a witness statement of Mr Yau Fong Yin, pharmacist of the Department of Health.  Mr Lau for the defendant did not object to the production of this statement.  In his statement, Mr Yau provided information in relation to the Part I poisons and dangerous drugs involved in this case and their side effects on human body for the usage/ dosage unit of the seizure.  Miss Yuen also submitted HKSAR v Chan Yau Fat HCMA 157/2008 for the court’s consideration. 

Mitigation

15.  In mitigation, Mr Lau for the defence said that the defendant, aged 50, is married with a daughter aged 18.  In the letters written by his wife, daughter and mother, the defendant was described as a filial son, a good husband and a caring father. 

16.  As for his employment, the defendant once partnered with another man and ran a pharmacy in Wong Tai Sin area for 15 years.  In 2008, he closed his business.  He then became employed as a salesman in a pharmacy.  Since 2009, he had been operating a fruit stall earning $10,000 to $20,000 a month.  He always has the aspiration to run his own pharmacy and for this reason he maintains close connections with drug suppliers.  He was offered to cheap stock of drugs and Part I poisons.  He kept the stock with a view to opening his own shop in the future.

17.  In respect of Charge 5, Mr Lau referred this court to a number of authorities namely R v Chan Chi Man [1987] HKLR 221; R v Sin Shing Cheong [1987] HKLR 1123; HKSAR v Lai Kwok Hung CACC 564/2002; HKSAR v Choi Tung Cheung HCMA 759/2005 and HKSAR v Tsang Cheuk Lun HCCC 357/2014.  In short, he considered that in sentencing the defendant for trafficking in diazepam, the court should look at the weight of the drug involved but not the number of tablets.  This I agree.

18.  Regarding Charges 1 and 4, he agreed with this court that the defendant, being in his possession of different types of Part I poisons, could cater for a wider market for the supply of these poisons.   

19.  Apart from the guilty pleas, Mr Lau submitted that there was another mitigating factor in this case, that is, the defendant volunteered to bring the Customs officers to store 8155 leading to his arrest for Charges 3, 4 and 5. Without his confession and cooperation, the authority would not have discovered his commission of these offences.

20.  Finally, he urged this court to consider the totality principle. 

Reasons for Sentence

21.  I have carefully considered the witness statement of Mr Yau and everything said by Mr Lau including the mitigation letters and the authorities submitted.

22.  The maximum penalty for:-

(a) Charges 1 and 4: a fine at level 6 and imprisonment for 2 years’ imprisonment;

(b) Charges 2 and 3: a fine of $500,000 and imprisonment for 5 years; and

(c) Charge 5: a fine of $5 million and imprisonment for life.

23.  There are a total of 11 types of Part I poison involved in Charges 1 and 4, 9 types of which were in tablet form with a total of 427,631 tablets (Charge 1: 49,357 + Charge 4: 378,427).

24.  In determining the appropriate sentence for Charges 1 and 4, I have considered a number of authorities including R v Tang Chung Yan HCMA 1441/1989; HKSAR v Tsang Kin Chung HCMA 673/2006; and HKSAR v Chan Tak Shing HCMA 656/2002.  A reading of these cases seem to suggest that an immediate custodial sentence is called for in respect of such an offence.  In Chan Tak Shing, the appellant pleaded guilty to possession of 4 tablets of zopiclone, a Part I poison.  On appeal, his sentence was reduced to 2 months’ imprisonment.

Charge 1

25.  Having considered all the circumstances of the case including that it involved a large amount of tablets, that is, 49,357 tablets; that there were 5 different types of Part I poisons, most of which was sildenafil which is used in the management of erectile dysfunction and pulmonary arterial hypertension; and that the estimated value was HK$384,200, I adopt a starting point of 16 months’ imprisonment.

Charge 4

26.  It involved 378,427 tablets of 7 different types of Part I poisons and 2 bottles of Part I poisons.  The number of tablets of zopiclone was substantial, that is, 184,314.  The estimated value of all these poisons was HK$2.35 million, an amount which was 6 times more than Charge 1.  Having considered all the circumstances of the case, I adopt a starting point of 18 months’ imprisonment.

Charges 2 and 3

27.  For charges 2 and 3, I note that in HKSAR v Chan Yau Fat, Deputy Judge Line, as he then was, said that:-

“I take the view that selling medicines under false descriptions is something that is so serious that it justifies an immediate custodial sentence.”

It is considered to be a serious offence for reasons including the issue concerning public health safety. In the present case, the number of tablets involved in both charges is substantial. It is noted that the defendant in this case was not caught red-handed for selling medicines over the counter in a dispensary. However, the fact that he possessed such an amount of medicines is apparent, that is, they are for sale in the future.

28.  For Charge 2, I adopt a starting point of 12 months’ imprisonment. 

29.  For Charge 3, the number of tablets was 59% more than that in Charge 2. It justifies a higher starting point and I adopt 16 months’ imprisonment. 

Charge 5

30.  I now proceed to deal with the sentence of Charge 5.  There are 5 types of dangerous drugs involved and the most serious one in terms of the number of tablets (29,104) and the narcotic weight (330.72g) is diazepam.  Mr Yau said that diazepam can be used in the short term treatment of severe anxiety disorders, as a hypnotic in the short-term management of insomnia.

31.  The tariff for trafficking in methaqualone in powder form is applicable to diazepam and midazolam: See R v Sin Shing Cheong and R v Chan Chi Man.  I have not lose sight that there are 316 tablets / 4.12g of midazolam in this charge.  Adding these two types of dangerous drugs together, there are 29,420 tablets / 334.84g of diazepam and midazolam.  In R v Sin Shing Cheong, where the narcotic content of methaqualone is below 500 grammes, the sentence is as the court thinks fit, and for over 500 grammes to 1,000 grammes, the sentence is in the range of 6 to 12 months’ imprisonment.

32.  In R v Gary Orton, HCMA 225/1997, the late Mr Justice Gall said that:-

“…in respect of the same quantity of drug sentences for Diazepam should be significantly less than Methaqualone but still high enough to mark the fact that Diazepam is a dangerous drug. I would have thought that a sentence about two thirds of that appropriate for a quantity of Methaqualone would be right in the same circumstances and for the same amount of Diazepam.”

33.  Although the number of tablets, that is 29,420 tablets of diazepam and midazolam is not insubstantial, the narcotic weight was only 334.84 grammes.  I will adopt a starting point of 15 weeks’ imprisonment.  The narcotic content of the other 3 types of dangerous drugs is only 2.544 grammes so I will simply disregard them for sentencing purpose.

Mitigating factor

34.  There are mitigating factors in this case. 

Guilty plea

35.  First, the defendant indicated his pleas of guilty on the plea day hearing in the District Court and for this he is entitled to a full one-third discount for sentence.

Confession to Charges 3, 4 and 5

36.  Secondly, without the defendant volunteering the information and leading the police to store 8155, the Customs officers would not have been aware of the other offences he had committed.  In HKSAR v Hui Chi Tong CACC 14/2007, the Court of Appeal said at para 22:-

“But for the voluntary confession, the applicant would not have been found guilty of 1^st charge. Such voluntary admission, coupled with a plea later, showed genuine remorse. It is in the public interest to encourage an offender to ‘own-up’ to his misdeed and to face the consequence. The most effective way of giving encouragement is to give a greater than normal discount upon a plea. In all the circumstances of this case, we are of the view that a further discount of two months is appropriate.”

37.  In this case, for the defendant’s owning-up to his offences of Charges 3, 4 and 5, I will further reduce the sentence accordingly.

38.  Having considered all the circumstances of the case including the defendant’s guilty plea and his confessions to Charges 3, 4 and 5 and that there were special circumstances on the papers which justified a lenient view to be taken, I sentence the defendant in the following terms:-

Charge 1: the starting point adopted is 16 months and it is reduced to 9½ months.

Charge 2: the starting point adopted is 12 months and it is reduced to 7 months.

Charge 3 the starting point adopted is 16 months and it is reduced to 9 months.

Charge 4: the starting point adopted is 18 months and it is reduced to 10 months.

Charge 5: the starting point adopted is 15 weeks and it is reduced to 8 weeks.

Totality

39.  What remains now is for me to consider the totality principle.

40.  All the offences were committed on the same day and involved either Part I poisons or dangerous drugs.  For this reason, I am prepared to pass wholly concurrent sentences in respect of Charges 1, 4 and 5.

41.  However, I take note of the fact that Charges 2 and 3 do involve additional criminality in that forged trade marks were applied to the Part I poison. Therefore, whilst the 7-month term period in Charge 2 should run concurrently with the 9-month term period in Charge 3, 2 months of this overall 9-month term should run wholly consecutively to the sentences of the remaining charges i.e. Charges 1, 4 and 5.  In other words, for Charges 2 and 3, the sentences are to run concurrently with each other, so a total of 9 months for Charge 2 and 3 but 2 months of which are to run consecutively to the charges of 1, 4 and 5.

42.  In other words, the defendant is sentenced to serve a total of 12 months’ imprisonment.