HKSAR v. CHAN CHUN HIN

DCCC 859/2023

[2024] HKDC 816

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 859 OF 2023

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REASONS FOR SENTENCE

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1.  Defendant pleaded guilty to a charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 (“1^st charge”)  and a charge of possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134 (“2^nd charge”). He also agreed to the Summary of Facts and is so convicted.

Facts

2.  On 7 February 2023, police spotted a male SIU entering Room 1015 of Hotel Cozi Wetland (“the Hotel”). Upon enquiry, a car key was found on him. He said that the car key belonged to him and he had driven a private car registration number WU8654 (“the Car”)  to the car park of One Sky Mall, 8 Tin Sau Road, Tin Shui Wai, New Territories (“the Car Park”).

3.  The police then escorted SIU to the Car Park and used the car key to unlock the Car. Upon search of the Car, a black rucksack containing the following items, whose narcotic contents were later confirmed by government chemist, were found:

(i)  4 large plastic bags and 18 small plastic bags containing a total of 129.96 grammes of solid containing 109.52 grammes of ketamine; and

(ii)  4 plastic bags containing a total of 193 tablets containing 22.86 grammes of 3,4-methylenedioxymethamphetamine (“ecstasy”).

4.  Upon search, police seized a HK$10 note with traces of a solid at the backseat of the Car. Government chemist later confirmed it was traces of a solid containing ketamine.

5.  The rucksack, banknote and dangerous drugs were seized by the police as exhibits. At the Car Park, SIU said he had nothing to do with the drugs and that they belonged to the defendant.

6.  At the same time, another police party arrived at Room 1002 of the Hotel. When the defendant opened the door, police revealed their identity and entered the room. Upon search, HK$3,000 cash, two key cards to Room 1002 and one mobile phone were seized from the defendant.

7.  Police then took the defendant to the Car in the Car Park and showed him the rucksack with the dangerous drugs found inside. Under caution for drug trafficking, the defendant stated, inter alia, that the drugs belonged to him. As to the drugs on the banknote, he said under caution that it was for his own consumption.

8.  In the video-recorded interview, the defendant stated, inter alia, that he bought the rucksack and the drugs for HK$30,000 and that he consumed ketamine once a week. In the Car Park, he took the banknote out from the rucksack for snorting the ketamine. He was to repack the ketamine in the large packs into smaller packs before reselling. He intended to resell the ketamine at HK$300 per small packet and ecstasy at HK$100 per tablet. He had not resold any of the drugs yet and the HK$3,000 cash on him was his own savings.

9.  CCTV footages of the Car Park show that the Car returned to the Car Park with SIU, the defendant and another person on 7 February 2023.

10.  The ketamine involved can attract a street value for HK$59,132 and the ecstasy tablets for HK$8,492.

11.  At the material times, the defendant possessed the drugs in question for the purpose of unlawful trafficking. He also unlawfully possessed the traces of ketamine found on the banknote.

Mitigation

12.  The defendant is now aged 20. He committed the offences whilst he was aged 19. He is single. He came from a decent family. He has received education up to Form 4. He was unemployed at the time of offence.

13.  He committed the offence in order to make quick money and he did not realise the serious consequence of the offences. Defence counsel said the defendant now realises the serious consequences that he has to bear. He handed to court the mitigation letters from the defendant and his parents, all asking for leniency for the defendant and asking the court to allow the defendant to rehabilitate after a relatively short sentence.

14.  Defence counsel conceded that for trafficking of the drugs in question, following the guideline in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, it would attract a sentencing starting point of roughly 7 years’ imprisonment. Defence counsel asked this court to give the defendant a sentencing discount by reason of his guilty plea and also by reason of his young age.

Discussion

15.  Before sentencing, this court has carefully considered mitigation submitted by defence counsel as well as the mitigation letters.

1^st charge

16.  The maximum sentence on conviction of this charge upon indictment is a fine of HK$5 million and imprisonment for life.

17.  This is a very serious offence and despite the relatively young age of the defendant, the only appropriate sentencing option is one of immediate imprisonment.

18.  For trafficking of ketamine and ecstasy in this case, as conceded by defence counsel and following the authority of Hii Siew Cheng, the sentencing starting point for trafficking a total of 132.38 grammes of the two drugs is 83 months’ imprisonment.

19.  Two drugs were involved under this charge. It amounts to an aggravating feature in sentencing and the sentencing starting point is enhanced by 3 months to 86 months’ imprisonment.

20.  This court was told that the defendant committed the present offence whilst he was on bail for other offences of not similar nature and whilst he was shortly released from Sha Tsui Correctional Institution. Clearly, defendant had not learned a lesson despite being incarcerated. On this occasion, the court is not going to enhance his sentencing starting point on the basis that he committed the offence whilst on bail.

21.  As the offence is a very serious offence, personal background is seldom a valid mitigating factor. Committing the offence for quick money obviously is not a valid mitigating factor.

22.  Considering the mitigation done on his behalf, the most valid mitigating factor is his guilty plea, for which he is entitled to a full one-third sentencing discount. His sentence is discounted to 57 months and 10 days’ imprisonment.

23.  Mitigation letters from the defendant and his parents urged this court for leniency. They said defendant is a filial son. This court is willing to further discount his sentence by 3 months by reason of his relatively young age.

24.  Accordingly, the defendant is sentenced to 54 months and 10 days’ imprisonment for the 1^st charge.

2^nd charge

25.  The maximum sentence on conviction upon indictment for this charge is a fine of HK$1 million and imprisonment for 7 years, subject to section 54A of the Dangerous Drugs Ordinance.

26.  In this case, the drugs involved were only traces of ketamine. There is no risk at all of dissipation of drugs. The court will adopt a sentencing starting point of 3 months’ imprisonment for the 2^nd charge.

27.  He is entitled to a full one-third sentencing discount by reason of his guilty plea, bringing the sentence of the 2^nd charge to 2 months’ imprisonment.

Totality

28.  2^nd charge was committed at the same time with the 1^st charge or roughly at the same time of the 1^st charge. Both relate to ketamine, although the nature of these offences are different. Commission of the 2^nd charge adds little to the culpability of the defendant in the 1^st charge.

29.  Considering the totality principle and the culpability of the defendant in the whole case, the court considers that the total sentence of 54 months and 10 days’ imprisonment is a just and proportionate sentence for the defendant. The court therefore orders that the sentence of the 2^nd charge is to run totally concurrent with the sentence of the 1^st charge.

30.  The defendant is therefore sentenced to a total of 54 months and 10 days’ imprisonment in this case.