HKSAR v. CHAN CHUN KIN

DCCC 12/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 12 OF 2013

-----------------------------------

-----------------------------------

------------------------------

Reasons for Sentence

------------------------------

Charge and facts

1.  The defendant pleads guilty to a charge of trafficking.  In the evening on 5 October 2012, a female knocked on the door of the defendant’s room in a tenement building in Sham Shui Po.  The police intercepted her and the defendant, who opened the door. 

2.  The police searched the defendant’s room and seized the following exhibits:

(1) 1 transparent resealable plastic bag containing 5.17 g of a mixture containing 1.05 g of heroin hydrochloride;

(2) 1 transparent resealable plastic bag containing 6.91 g of a crystalline solid containing 6.61 g of ICE;

(3) 1 plastic straw segment containing traces of heroin;

(4) 1 lighter;

(5) 1 transparent resealable plastic bag containing 33 smaller transparent resealable plastic bags;

(6) A bunch of keys;

(7) 24 red plastic sheets.

3.  After arrest and caution, the defendant’s answers included the following:

(1) He had paid $2,500 for the ICE and $2,500 for the heroin to a male in Maple Street park on the same date;

(2) Some of the drugs were for self-use and some for selling to friends when they approached him;

(3) He rented the room at $2,800/month;

(4) He worked as a transport labourer on a casual basis at $350/day;

(5) He would use the lighter, the resealable plastic bags and the red plastic sheets for the packaging and/or consumption of the drugs.

(6) The female was his girlfriend and she knew nothing about the drugs.

4.  He had $350 on him when arrested. 

5.  The estimated street value of the heroin was $4,725 and the ICE $4,940. 

Personal background and mitigation

6.  He is 42 years of age, of F .2 education level.  He mother is in her sixties.  He is a divorcee.  His 5 children live with his ex-wife.  He was a casual worker before arrest.  He had 2 convictions for using drugs and 1 for acting as a triad member. 

Sentencing principles

Trafficking in ICE

7.  The Court of Appeal in AG v Ching Kwok-hung [1991] 2 HKLR 125 has stated that trafficking in up to 10 g of ICE shall warrant 3 to 7 years' imprisonment as the starting point.   

Trafficking in heroin

8.  The Court of Appeal in R v. Lau Tak-ming [1990]2 HKC 370 has stated that trafficking in heroin of up to 10 g shall warrant 2 – 5 years’ imprisonment as the starting point. 

Sentence for cocktail drugs

9.  In HKSAR v Cheung Kwok Leung CACC 539/2002, Beeson J, who delivered the judgment of the Court of Appeal, regarded that:

38. We acknowledge however that it can be a difficult and complex task to sentence offenders who traffick in, or possess quantities of, a number of different drugs. In a case such as the present one the starting point should be based on the total narcotic content of the most serious drug, or drugs where the tariff guidelines are co-equal.

39. The sentencer should examine the nature and quantity of other dangerous drugs in the combination and, where warranted, make an upward adjustment of, say, 4-18 months from the starting point. Whether any such adjustment is warranted will depend on whether other narcotic quantities are sizeable, whether the other drugs come within the same, or lesser tariffs, or whether any adjustment would be pointless, given the starting point adopted or the relevant range of sentence.

Sentencing this defendant

10.  As the defence says that most of the drugs were for self-use, I have conducted a Newton hearing to determine the quantum of drugs for trafficking.  My rulling is that all of the drugs were for trafficking. 

11.  The predominant drug was ICE both in terms of narcotic weight and psychotropic harm.  For the ICE, I take a starting point of 4 years.  I make an upward adjustment of 6 months to include the heroin.  From the overall starting point of 4 ½ years, I give a less than one-third discount, ie 1 year, for the fact that he has pleaded guilty but failed in the Newton hearing.    There are no other mitigating factors.  His sentence is 3 ½ years.