HKSAR v. CHAN YING KIT AARON

DCCC 1146/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1146 OF 2016

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REASONS FOR SENTENCE

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Charge

1.  The defendant pleaded guilty to a charge, namely, trafficking in 4.28 grammes of methamphetamine hydrochloride, commonly known as “ice”, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Facts

2.  The facts to which the defendant admitted show that at around 7.25 pm on 27 September 2016, PC 6571 (PW1) noticed the defendant acting furtively outside Ground Floor, Tsui Hong House, Tsui Wan Estate, Chai Wan, in Hong Kong.

3.  PW1 intercepted the defendant.  Upon search, he found one transparent resealable plastic bag containing suspected dangerous drugs inside the glove the defendant was wearing on his left hand.

4.  The government chemist confirmed that the plastic bag contained 4.61 grammes of a crystalline solid containing 4.28 grammes of “ice”. 

5.  PW1 arrested the defendant.  Under caution, the defendant admitted that he purchased the “ice” for self-consumption and for sharing with his friends.

6.  A video recorded interview was conducted with the defendant on the same day, during which he admitted the following: the drugs belonged to him and he purchased it from a friend at Southorn Stadium that day for $500, and he was going to share the drugs with his friends.

7.  The estimated street value of the “ice” seized was $1,480.88.

8.  At all the material times, the defendant possessed the “ice” for the purpose of unlawful trafficking.

Chronology of this case

9.  This case was first brought before me on 9 May 2017 at 2.30 pm.  Miss Wong, Solicitor for the Defendant, applied to have the case stood down to 3.30 pm, for she had forgotten to bring her court gear to court.

10.  In the meantime, she submitted to the court’s consideration two mitigating letters written by the defendant and a letter from the Hospital Authority confirming that the defendant is willing to donate his organ upon his death.

11.  It is noted in one of the defendant’s self-written letters he claimed that all the “ice” seized was solely for his own consumption.

12.  I then raised it to Miss Wong whether or not the defendant was prepared to plead guilty to the charge of trafficking in dangerous drugs and to admit the summary of facts, in which it was stated in paragraph 7, that at all the material times the defendant possessed all the “ice” for the purpose of unlawful trafficking.

13.  Miss Wong said that she would take further instructions on this issue.

14.  When the case was resumed at around 3.30 pm, Miss Wong applied to have the case adjourned for her to take further instructions on the aforementioned issue and to discuss with Mr Ng, Counsel for the Prosecution, as to the content of the summary of facts.

15.  Mr Ng did not object to the application for an adjournment and the case was therefore adjourned to 17 May 2017 at 9.30 am.

16.  At the same time, this court drew Miss Wong’s attention to the following cases, namely, HKSAR v Wong Suet Hau [2002] 1 HKLRD 69; HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121; HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572; and HKSAR v Liu Ming Sze [2017] 1 HKLRD 297.

17.  On 17 May 2017, the defendant pleaded guilty to the charge of trafficking in a dangerous drug.

18.  Mr Ng amended the summary of facts by deleting the word “all” in paragraph 7.  In other words, the defendant now admits that, “at all the material times, he possessed the drugs for the purpose of unlawful trafficking.”

Previous criminal conviction

19.  The defendant has a total of 46 previous convictions, 15 of which relate to the offences of possession of a dangerous drug and possession of pipe or equipment fit and intended for smoking dangerous drugs.

Antecedent

20.  No issue was taken to the contents of the antecedent statement.  The contents of the antecedent statement showed that the defendant is 45 years old.  He is single.  He started taking “ice” five to six years ago.  Prior to the arrest of the present offence, he was a cleaner.

Mitigation

21.  In mitigation, Miss Wong submitted to this court a written submission, together with a number of authorities.

22.  In paragraph 3 of her submission, Miss Wong submitted that, in view of the defendant’s record of possession of drugs and his obvious addiction to drugs, it would deem appropriate to accept that some percentage of the drugs would have been for the self-consumption of the defendant.

23.  She referred to Wong Suet Hau and put forward the following factors, which, she said in her oral submissions were in favour of the defendant, to show that he possessed some of the “ice” for his own use, namely:-

(1) the quantity of drug was small;

(2) only one plastic bag was found;

(3) the defendant is a habitual user for a long period of time since 1997;

(4) he admitted in the VRI said that the drug was for self-consumption and for sharing with his girlfriend;

(5) he could afford to buy the “ice” seized; and

(6) he has 11 records of possession of a dangerous drug and 4 records of possession of pipe, equipment fit for and intended for smoking, injecting, inhaling dangerous drug.

Reasons for Sentence

24.  I have carefully considered everything said and written on behalf of the defendant by Miss Wong.

Starting point

25.  In paragraph 8 of Miss Wong’s written submission, she referred to the sentencing guidelines of HKSAR v Tam Yi Chun [2016] 4 HKC 256 and said that, by a purely arithmetical approach, the starting point for sentence for 4.28 grammes of “ice” should be around 36 months’ imprisonment.  This, I did not agree.

26.  Mr Ng then submitted that the starting point should be around 56 months’ imprisonment.  At a later stage, Miss Wong accepted that it should be the starting point for sentence.

27.  The charge of trafficking in a dangerous drug is a very serious offence.  The Court of Appeal in AG v Ching Kwok Hung [1991] 2 HKLR 125 laid down sentencing guidelines for trafficking in “ice”: where the quantity of narcotic is up to 12 grammes, sentence upon conviction after trial is between 3 and 7 years’ imprisonment. 

28.  In HKSAR v Capitania Edwin F, CACC 28/2004, the Court of Appeal accepted that the reference to 12 grammes was a typographical mistake and should read “10 grammes”: See also HKSAR v Tam Yi Chun [2016] 4 HKC 256.

29.  For the amount of “ice” involved in this case ie, 4.28 grammes I adopt a starting point of 56 months’ imprisonment.

Aggravating factor

30.  The defendant is properly to be regarded as a persistent offender, having appeared in court 30 times with a total of 46 convictions, 15 of which are either offences of possession of a dangerous drug or offences of possession of equipment fit and intended for smoking dangerous drugs.  Obviously, past sentences imposed on him have no deterrent effect on him.

31.  Applying the principles in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, I am satisfied that the starting point for sentence should be increased by 3 months to 59 months’ imprisonment.

Self-consumption

32.  The prosecutions accept part of the drugs may have been for the defendant’s own consumption.

33.  On the issue of self-consumption, I have considered HKSAR v Wong Suet Hau, in particular, paragraphs 33 and 34; HKSAR v Chow Chun Sang; and also HKSAR v Tam Ling Yuen.

34.  In Wong Suet Hau, the Court of Appeal said that:-

“Where it is accepted that a significant proportion of the drugs were for the defendant’s own consumption, it is unnecessary, save in the most exceptional case where the division is readily quantifiable, for the sentencing judge to specify the relative amounts of proportions, except perhaps in the very broadest of terms. In such circumstances the court should so adjust sentence as to reflect the fact that not all the drugs were for trafficking.”

35.  Taking into account on arrest the defendant admitted that he purchased the “ice” for self-consumption and for sharing with his friends, that he admitted the same in his VRI, that the prosecution said that he bought the “ice” around 5 pm, that he was on his way home as raised in the mitigation, that he has 15 previous convictions for offences of possession of dangerous drugs and possession of equipment fit for smoking dangerous drug, and without any conviction of trafficking in a dangerous drug, that only one packet was found on him, and that the quantity of “ice” was not large, I am satisfied that a significant proportion of the “ice” was for his own consumption.

36.  In deciding how much weight should be attached to this issue, I have considered the abovementioned authorities.

37.  In light of the circumstances, I am prepared to reduce the starting point to 50 months’ imprisonment, which is around 15% reduction from the starting point.

One-third discount

38.  Given that the defendant indicated his plea of guilty at the plea day hearing and in light of the judgment of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, he is entitled to a full one-third discount of sentence.

39.  The sentence is therefore reduced to 33 months’ imprisonment.

40.  There is no other mitigating factor which justifies a further discount of sentence.

41.  The defendant is sentenced to 33 months’ imprisonment.