HKSAR v. CHAU CHO TIM

HCCC 103/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 103 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 pleaded guilty before me for one count of trafficking in dangerous drugs.

On the night of 5 August 2014, the police executed a search warrant for premises in Ping Ting Estate. They gained access to the relevant premises by prising open the iron gate of the premises. Upon entry the defendant was found present together with his girlfriend, Miss Lam, and Miss Lam’s mother. Upon search of the defendant, a plastic bag was found inside his pockets containing cocaine. The police searched the premises and a plastic box was found from a drawer in the bedroom containing four plastic bags, three of which each contained a dangerous drug, namely cocaine, ketamine and methamphetamine hydrochloride, ie, ‘Ice’. Also found in the plastic box were 141 resealable plastic bags, a plastic spoon and some metal tweezers. A roll of tinfoil was also found nearby.

Under caution, the defendant said:

“Ah Sir, the dangerous drug on my person and in the house are all mine. There is also some dangerous drug hidden in my private car downstairs. I have the car key on my person. I can take you there to search my car as well.”

The police then searched the defendant’s car at the carpark of Ping Ting Estate together with the defendant. In the front armrest compartment of the car, a black plastic bag was found containing a resealable plastic bag containing six resealable plastic bags. Four of the six resealable plastic bags contained ketamine, whilst two of which contained ‘Ice’.

Under caution, the defendant admitted the dangerous drugs found in the car belonged to him.

In a video-recorded interview, the defendant admitted he was in possession of all the dangerous drugs found and he bought those drugs from Ah Fai for his own consumption.

Examination of the two mobile phones found on the defendant revealed the messages with jargons used commonly associated with drug trafficking.

On an analysis by a Government Chemist, the total quantity of drugs possessed by the defendant amounts to 12.96 grammes of a solid containing 4.63 grammes of cocaine, 121.8 grammes of a powder containing 25.49 grammes of ketamine and 58.94 grammes of a crystalline solid containing 56.81 grammes of ‘Ice’.

The total street value of the drugs is estimated to be over HK$52,000.

The defendant is 34 years old and at the time of his arrest, he worked as a casual worker. He has three conviction records, all unrelated to dangerous drugs. At the time of his arrest, he was living with his girlfriend, Miss Lam.

According to Ms Lee, counsel for the defendant, the defendant has altogether three children, one from his marriage and two from a relationship with his ex-girlfriend. The first child is with his ex-wife and one of the other two children is with his ex-girlfriend, leaving only his daughter with him who is taken care of by his mother.

Ms Lee told me that the defendant has his parents and relatives to support, but his girlfriend, Miss Lam, left him after he was arrested. The defendant’s father and one of the defendant’s relatives wrote to the court to ask for leniency and the father and many relatives of the defendant are present in court to support him.

Ms Lee submitted to me a report from the Correctional Services Department proving that the defendant has a positive result to amphetamine and cocaine in the urine test on admission to the Lai Chi Kok Reception Centre a few days after his arrest for the present offence. Ms Lee asked me to give an allowance on sentence for the fact that part of the drugs involved was for the defendant’s own consumption.

There was an issue before me initially as to whether the trace of amphetamine in the urine test suggests the use of ‘Ice’. Mr Grounds, counsel on fiat for the prosecution, kindly took further instructions from the police and upon inquiry from the Government Chemist, it is confirmed that after intake of ‘Ice, the chemical will crack down to amphetamine. On this basis, Mr Grounds has fairly conceded that some part of the drugs involved, including the ‘Ice’, was for the defendant’s own consumption and the vast bulk of it was for selling.

To assist the court to arrive at the appropriate sentence, Ms Lee prepared a paper setting out the calculation of the starting point of sentence with reference to the types and quantities of the drugs involved in this matter. On the paper, Ms Lee applied the three different tests used by the Hong Kong courts in consideration of sentence for trafficking in cocktail drugs, namely the absurdity test, the conversion test and the ratio test.

The result of the calculation shows that the term of sentence arrived at by the ratio test is the one most favourable to the defendant. The total quantity of dangerous drugs is 86.93 grammes. If all is regarded as ‘Ice’, the starting point for sentence would be 11½ years; if all is cocaine, it would be 9 years; and if all is ketamine it would be 7 years.

Applying the ratio test with reference to the respective quantities of each kind of drug involved in this case, the starting point for sentence should be 9 years and 11 months. As there are multiple kinds of drugs involved, I should raise the starting point to 10 years’ imprisonment. Giving allowance to the fact that part of the drugs was for the defendant’s own consumption, in the circumstances of this case I would give a discount of 10 per cent which leads to a starting point of 9 years’ imprisonment.

As was rightly acknowledged by Ms Lee, there is no valid mitigating factor in this matter apart from the defendant’s guilty plea.

Taking into account the defendant’s plea of guilty, the sentence is further reduced to 6 years’ imprisonment.