HKSAR v. CHAN MAN CHUN

DCCC 402/2018

[2018] HKDC 1452

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 402 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant appeared before me this morning on two charges of trafficking in a dangerous drug. They arise out of the same incident.

2.  The facts of the case are as follows.

3.  In the early morning of 13 January 2018, the defendant came across two police officers, PC13769 and SGT34701, in a lift at the building he was residing at, namely, Lai Shing Building, which was situated at No 495 to 497A of Nathan Road.  The officers had just finished their work for an unrelated matter somewhere in that building, and were taking the lift down as they made their way out.

4.  Inside the lift, they saw the defendant.  As the defendant was avoiding eye contact, the officers felt suspicion and requested for a body search.  In the course of that search, the officers found two transparent resealable plastic bags (Bag A & B) inside a black plastic bag each containing the dangerous drugs.

5.  The officers declared arrest on the defendant for the offence of possession of dangerous drugs and cautioned him and, under caution, the defendant said, “I am only responsible for the packing of the drugs.  I will then pass it to others.”

6.  As the defendant did not have his ID card with him when he was arrested, he was taken back to his flat, ie Flat E of the 12th Floor of the same building. The defendant provided the password for the main gate of Flat E and led the officers to what is called Capsule No 5, which was rented by him.  One of the officers, PC13769, used an access card provided by the defendant to open the door of that capsule. 

7.  After they all went into that capsule, a number of items including a sheet of paper containing traces of milky white powder; a plastic spoon containing what was later found also to be dangerous drugs; a black-and-silvery coloured electronic scale containing traces of white powder; a pair of scissors containing traces of white powder; a transparent resealable bag also with green lines containing dangerous drugs (this was later called “Bag C”); one transparent resealable plastic bag containing more drugs (this is called “Bag D” later); a total of 60 empty transparent resealable plastic bags; two sheets of paper with numeric figures written on them, were found and seized by PC24297.

8.  In addition, some monies, including some Macanese dollars and HK$12,784, were also found and seized.

9.  At around 6 minutes to 1 in the same morning, inside Flat E, PC13769 declared arrest of the defendant for the offence of trafficking in dangerous drugs and, under caution, the defendant said, “I am only paid to pack the drugs.  I will then pass it to others.”

10.  The drugs and some of the other items found were later sent to the government chemist for examination and on 6 March 2018 Dr Chan Wai Chung, Government Chemist, examined and certified them to be as follows:-

(a) Bag A, which was found by the officers before the defendant was taken back to Flat E, contained 60 plastic bags, was found to contain a total of 10.8 grammes of a solid containing 9.45 grammes of cocaine;

(b) Bag B, which was likewise found before defendant was taken back to Flat E, constituted of 55 plastic bags and these bags were found to contain a total of 10.1 grammes of a solid 8.83 grammes of cocaine;

(c) the piece of paper found in Capsule 5 was found to contain 1.44 grammes of a solid containing 1.23 grammes of cocaine;

(d) the spoon found there was found to contain 0.09 grammes of a solid containing cocaine;

(e) the scissors was found to contain traces of a solid containing cocaine;

(f) Bag C was found to have 0.16 grammes of solid containing 0.14 grammes of cocaine; and

(g) lastly, Bag D was found to contain 0.06 grammes of solid containing cocaine.

11.  Bag A and B in total contained 20.9 grammes of solid containing 18.28 grammes of cocaine. That is for the first charge.  For the spoon, the piece of paper, Bag C and Bag D, which were covered under the second charge, these were found to contain a total of 1.75 grammes of solid containing 1.37 grammes of cocaine.

12.  The street value for the drugs in relation to Bag A and B is said to be $19,303.68, and, for the drugs covered by the second charge, the total street value is said to be around $1,446.

13.  I turn now to the defendant’s background.

14.  The defendant was 24 years old at the time of the offence.  He is now 25.  I was told that his father left the family when he was very young.  The mother was therefore the only one to bring him and his elder brother up.  The defendant left school after finishing Form 1, and a few years after that he returned to school to do a one-year programme in air-conditioning work at the Vocational Training Council and after that he worked as an apprentice in that trade.

15.  According to his counsel, the defendant started abusing drugs when he was around 17 years old.  As one can see from the criminal records put before the court this morning, that was about the time when he got into trouble with the law.  For two charges of assault occasioning actual bodily harm, he was put on probation 12 months in May 2010.

16.  Now, apparently the defendant managed to keep away from further trouble for the few years after that.  For his next conviction came only in June 2017, after he was arrested for the offence of possession of dangerous drugs.  For this, he was sentenced to a term at the Drug Addiction Treatment Centre on 30 June 2017 from which, according to the antecedent statement I have had before me, he was discharged in December the same year.

17.  According to his counsel, again, although the defendant had got himself a job as a lorry attendant after he was discharged from the DATC, he wanted to earn more as he would like to make it up to his mother, to whom he said he used to make financial contribution when he was working.  And this, so I was told, was the main reason why he got into trouble on this occasion.

18.  I was further told by his counsel that he was no more than a foot soldier in the trade and he was only expecting to earn $500 for what he did with the drugs.  Lastly, I was told that he is very sorry for what he did and he entered his plea to these charges at the earliest opportunity.

19.  Now, it is well settled that, for trafficking in cocaine, the court in considering the starting point should use the same tariff for trafficking in heroin as laid down in the case of Lau Tak Ming.

20.  It is also well settled that, if the drugs were part of the common stock, the court should look at the total quantity in sentencing.  The case of HKSAR v Yip Pik Kwai [1999] 3 HKLRD 42, is one amongst many which one can look at for that principle.

21.  With 19.6 grammes of cocaine, the global starting point, in my view, should therefore be one of 5 years and 8 months.

22.  With a one-third discount, which the defendant is no doubt entitled to, one will get 46 months.

23.  The defendant has previous convictions, but, as they are not similar, this court will not be holding them against him.  At the same time, however, there are no other mitigating factors which I could find in this case.  The total sentence this court therefore is going to impose is one of 46 months’ (or 3 years and 10 months’) imprisonment.

24.  As the defendant is convicted of two charges, what I am going to do is this.  For the first charge, I will sentence the defendant to a term of 3 years and 10 months.  For the second charge, I will sentence him to a term of 2 years’ imprisonment, and, for the reason which I have already given earlier, I am going to order the two charges to run concurrently, making a total term of 3 years and 10 months.