HKSAR v. CHAN KIN BUN BEN

HCCC 170/2025

[2025] HKCFI 3650

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 170 OF 2025

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REASONS FOR SENTENCE

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The Charge

1.  On 8 May 2025, the defendant pleaded guilty in the magistracy to one count of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134, and one count of possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap. 134.  The trafficking charge involved 31.9 grammes of a crystalline solid containing 31.5 grammes of methamphetamine hydrochloride (“ice”).  The possession charge involved 26 millilitres of a liquid, which upon drying contained 0.14 gramme of a solid containing 0.09 gramme of methamphetamine.  On the same day, the defendant admitted a Summary of Facts dated 20 January 2025 and he was committed to the Court of First Instance for sentencing.  Today, before this Court, the defendant confirmed his guilty pleas to the two charges and his admission of the Summary of Facts.

Facts Admitted

2.  The facts of the case can be summarized as follows. 

3.  On 9 August 2023, the police intercepted the defendant when he left a flat on Lantau Island.  It was a flat that the defendant had rented from mid-2021 at a monthly rent of $7,000.  The police gained access to the flat with the use of the defendant’s key and they searched the flat.  Inside one of the bedrooms and on a coffee table, they found:

(1)  a plastic bag containing the dangerous drugs as set out in the trafficking charge;

(2)  a plastic bottle with 2 openings and a glass tube inserted, containing the dangerous drugs as set out in the possession charge;

(3)  a plastic bag containing about 20 empty plastic bags; and

(4)  an electronic scale.

4.  Upon arrest and under caution at the scene, the defendant admitted possession of those dangerous drugs.  In a subsequent video-recorded interview under caution, he claimed that:

(1)  He had bought about 28 grammes of “ice” from a co-worker at the airport for $9,000;

(2)  He had the habit of consuming “ice” for 10 years, smoking a few decigram each time, and he had made the “ice” bottle for that purpose; and

(3)  He would hide the “ice” under a sofa in the bedroom and would lock the bedroom.

5.  The estimated street value of all the “ice” seized was about $14,642.

6.  In the Summary of Facts, the defendant admitted that he possessed the “ice” on the coffee table for purpose of unlawful trafficking (1^st charge)  and that he was in possession of the methamphetamine found in the plastic bottle (2^nd charge).

Background and Mitigation

7.  The defendant was born in Mainland China on 6 October 1972 and is now aged 52. He received secondary education up to Form 2.  Prior to his arrest, he was working at the airport as a logistics worker, earning around $20,000 per month.

8.  His counsel, Mr. David Cheung, informed the Court that the defendant was a habitual drug user.  The defendant claimed that a portion of the dangerous drugs under the trafficking charge was for self-consumption.  To support that claim, Mr. Cheung raised the following matters to the Court’s attention:

(1)  The defendant had been using the plastic bottle (which was found on the coffee table and contained “ice”)  to consume “ice”;

(2)  Apart from the plastic bag of 31.5 grammes of “ice” on the coffee table, no other bag or source of “ice” was found in the flat; and therefore, the “ice” in the plastic bottle had most likely come from the same plastic bag of “ice”. That tends to show that the defendant had been consuming part of the “ice” from the plastic bag;

(3)  The defendant mentioned in his video-recorded interview that he had the habit of consuming “ice” and would use the plastic bottle for that purpose;

(4)  The defendant’s last conviction in 2020 was for possession of dangerous drugs and he was sentenced to Drug Addiction Treatment Centre.

9.  Mr. Cheung informed the Court of the defendant’s claim that he would consume “ice” multiple times on a daily basis, and over the following week or so, but for the arrest, he would likely have used several grammes (5-10 grammes)  to satisfy his drug addiction.

10.  Given that the “ice” (under the 1^st charge)  was partly for self-consumption, Mr. Cheung invited the Court to give a discount to the defendant which, according to the authorities, could range between 10% and 25%, provided that the proportion of self-consumption was “commensurate with a percentage within that range”: see HKSAR v Cheung Wai Man [2019] 1 HKLRD 817 (at para. 60).

Sentence

11.  In sentencing the defendant, I will follow the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, bearing in mind also the Court of Appeal’s guidance in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.

12.  The first step is to identify the relevant guideline band applicable to the quantity of the dangerous drugs in question.  In the present case, the quantity of “ice” under the 1^st charge is 31.5 grammes and Mr. Cheung confirmed that the starting point for that quantity should be about 8 years and 5 months: see HKSAR v Huang Ruifang [2025] 2 HKLRD 138 at §66.  Mr. Raymond Chan, counsel acting for the prosecution, also confirmed that to be the correct starting point by a purely arithmetic calculation based on the tariffs.

13.  The second step is to assess the role and culpability of the defendant.  Mr. Cheung invited the Court to regard the defendant as a low-level trafficker in terms of culpability.  On the facts as admitted by the defendant and in light of the information and materials before the Court, I find that he was to consume some of the “ice” and to sell the bulk of it.  

14.  The third step is to decide where within the relevant guideline band the defendant should come.  Given his role was that of a trafficker and not merely a storekeeper or courier, I will enhance the starting point of 8 years and 5 months by 9 months, taking it to 9 years and 2 months’ imprisonment. 

15.  On the issue of self-consumption by a trafficker, the Court of Appeal in HKSAR v Cheung Wai Man (supra) stated (at §§59 & 60):

“59. Whilst a ‘significant proportion’ of the drugs were for the appellant’s own consumption, we do not consider it was as high as suggested by the appellant, in light of his admission that he trafficked in drugs to sustain his drug habit and the circumstances in which the drugs were found on him. We are therefore of the view that a 10% reduction should be given for the appellant’s consumption of some of the drugs.

60. We would add, that as there is a range of discount between 10% and 25% for self-consumption, a sentencing court needs to be satisfied that the proportion of the drugs to be consumed by the defendant is of a level of significance that is commensurate with a percentage within the range. In simple terms, the greater the proportion, the greater the percentage within the range, but this needs to be based on credible and reliable information and material, that fully and properly substantiates the proportion of the drugs intended for self-consumption.”

16.  In the circumstances of the present case, I accept the defendant’s claim that some of the “ice” was for his self-consumption but I am not persuaded that he was to consume as high as up to 10 grammes of the “ice” (that would have been some 31.7% of the “ice”). I indicated to Mr. Cheung that I was only inclined to give a 15% discount on the basis of the Summary of Facts and the matters raised before the Court, and should the defendant seek a higher discount, a Newton enquiry would need to be held on the issue.  Mr. Cheung informed the Court that the defendant did not propose to make good the entirety of his claim in a Newton enquiry.  I shall therefore discount the enhanced starting point of 9 years and 2 months by 15%, and that will lead to a term of imprisonment of about 93 months. 

17.  The fourth step is to deal with aggravating factors, if any.  The defendant has a total of nine previous convictions, eight of them were related to dangerous drugs, including one conviction of trafficking.   The trafficking conviction was entered on 11 September 2015, when the defendant was sentenced in the Court of First Instance to imprisonment for 4 years and 8 months.   His last two convictions were for two counts of possession of dangerous drugs both entered on 10 June 2020 for which he was sentenced to the Drug Addiction Treatment Centre.  By virtue of his past drugs-related records, I will enhance the sentence by 9 months, taking it to 8 years and 6 months’ imprisonment. 

18.  The fifth step is to take into account the mitigating factors, if any.  As accepted by Mr. Cheung, given the seriousness of the trafficking offence, the only strong mitigating factor in the defendant’s case is his guilty plea which was entered at the earliest opportunity.  Because of that, he will be given a full one-third discount.  That brings the sentence down from 8 years and 6 months’ imprisonment to 5 years and 8 months’ imprisonment for the trafficking charge (the 1^st charge).

19.  For the possession charge (the 2^nd charge), in view of the very small quantity of “ice” involved, and taking into account his previous drug-related convictions and his guilty plea, I shall impose a sentence of 12 months’ imprisonment to be served concurrently with the sentence for the trafficking charge.  

20.  Lastly, I consider these sentences fair, just and balanced in all the circumstances of the offences and the defendant.  Accordingly, the defendant is sentenced to a total term of imprisonment for 5 years and 8 months.

Exhibits

21.  Order in terms of the Prosecution’s application, not objected to by the Defence, was granted to dispose the exhibits.