區域法院（刑事）Deputy District Judge Bernard Chung5/6/2024[2024] HKDC 911
DCCC772/2023
A A
B B
DCCC 772/2023
[2024] HKDC 911
C C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 772 OF 2023
F F
G G
-----------------------------
H
HKSAR H
v
I I
CHAN Chin-ho Defendant
J ----------------------------- J
K K
L Before: Deputy District Judge Bernard Chung L
Date: 6 June 2024
M M
Present: Mr. Sammy Hui, Counsel on fiat, for HKSAR
N Mr. Davies Oliver Howell, instructed by Messrs Wong & Co., N
for the Defendant
O O
Offence: [1] Trafficking in a dangerous drug (販運危險藥物)
P [2] Possession of prohibited weapon (管有違禁武器) P
Q Q
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R R
REASONS FOR SENTENCE
S
----------------------------------------- S
T T
U U
V V
-2-
A A
B B
1. The defendant CHAN Chin-ho (D) pleaded guilty before me
C to 2 Charges. Charge 1 “Trafficking in dangerous drugs”, contrary to C
section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.
D D
Particulars of Offence stated that on 24 April 2023, at Room 713, Silka Far
E East Hotel, Nos. 135-143 Castle Peak Road, Tsuen Wan, he unlawfully E
trafficked in a dangerous drug, namely 5.83 grammes of a solid containing
F F
4.29 grammes of cocaine. Charge 2 “Possession of prohibited weapon”,
G contrary to section 4 of the Weapons Ordinance, Cap.217. Particulars of G
offence stated that at the same time and place, he had in his possession a
H H
gravity-operated steel baton.
I I
2. The facts of the case are simple and straightforward. At
J J
around 6:40 pm on 24 April 2023, a party of police officers intercepted D
K when he was entering Room 713 of Silka Far East Hotel in Tsuen Wan K
with his access card. The Police then conducted a search inside the room
L L
and found the following items:
M (a) A black re-sealable plastic bag containing 18 black re-sealable M
plastic bags containing a total of 5.74 grammes of a solid
N N
containing 4.29 grammes of cocaine (E1);
O (b) 2 folded HK$20 banknotes containing a total of 0.09 grammes O
of a solid containing cocaine (E2);
P P
(c) A digital scale (E3);
Q (d) A beaker (E4); Q
(e) 5 empty large black re-sealable plastic bags (E5);
R R
(f) A stack of smaller empty black re-sealable plastic bags (E6);
S (g) Cash HK$610; and S
(h) An extendable baton (E7).
T T
U U
V V
-3-
A A
B B
3. D was arrested. Under caution, he admitted that the dangerous
C drugs were cocaine and he delivered them for monetary reward, and he C
kept E7 for self-defense.
D D
E 4. In a subsequent video-recorded interview, D admitted, inter E
alia:
F F
(a) E1 to E7 belonged to him;
G (b) He bought the cocaine from a person named “Siu Ming” at G
Yen Chow Street in March 2023 for HK$10,000, and this “Siu
H H
Ming” introduced buyers to him for the drugs;
I (c) He sold the cocaine at HK$400 to HK$500 per packet; I
(d) He packaged the cocaine in question by himself;
J J
(e) The cash HK$610 was proceeds from drug trafficking
K activities; K
(f) He was unemployed;
L L
(g) He picked up E7 in Sham Shui Po and kept it in Room 713;
M and M
(h) One of the mobile phones found on him was given to him by
N N
“Siu Ming” for drug trafficking activities.
O O
5. E7 was examined by a Forensic Scientist who confirmed that
P P
it was 21 cm in length when retracted and 54 cm when fully extended, and
Q the inner and middle tubes could be extended by operation of gravity or a Q
combination of centrifugal force and gravity force.
R R
S 6. The estimated street value of E1 and E2 is HK$6,366. S
T T
7. D admitted that he possessed E1 and E2 for the purpose of
U U
V V
-4-
A A
B B
unlawful trafficking and E7, a prohibited weapon within the meaning of
C Cap. 217, for self-defence use. C
D D
Defendant’s Backgrounds and Mitigation
E E
8. D is 27 years old, born in Hong Kong on 26 September 1996.
F F
He received education up to Form 3 level and had worked as a
G transportation worker before. He is single and resided with his G
grandparents in a public housing unit in Cheung Shan Estate, Tsuen Wan.
H H
At the time of his arrest, he claimed to be living with his girlfriend at Room
I 713. He has 2 previous convictions for 3 offences, 2 counts of “Robbery” I
in December 2015 when he was sentenced to a total of 6 years 3 months
J J
imprisonment, and 1 count of “Trafficking in Dangerous Drugs” in August
K 2022 for which he was sentenced to 16 months. He committed the present K
offences just 2 months after his release from prison in February 2023. He
L L
was also sentenced to DATC in October 2015 for “Possession of
M Dangerous Drugs” with No Conviction Recorded. M
N N
9. Mr. Davies representing D submitted in mitigation that the
O parents of D divorced when he was very young. D was raised by his O
grandparents, who are in their 90s, and lived with them. He worked as a
P P
wine sales assistant at his father’s shop with a monthly salary of
Q HK$10,000, out of which he contributed HK$6,000 to his grandparents. D Q
committed the present offences out of financial pressure to take care of his
R R
elderly grandparents. At the time of the offences D also has a girlfriend
S who is aged 25 and worked as a sales representative. D has considered S
marriage with her after he serve out his sentence for the present case.
T T
U U
V V
-5-
A A
B B
10. Mr. Davies submitted that D is extremely remorseful and
C regret what he had done. He pleaded guilty on a timely basis, which saves C
the Court’s time and resources, and should be entitled to the full 1/3
D D
discount. Mr. Davies further submitted that D was a drug addict, as
E reflected by his previous possession conviction. Some parts of the drugs E
currently seized were for D’s own consumption. However, upon my
F F
enquiry, he stated that D will not provide any further evidence in support
G of this submission. Mr. Davies submitted 3 mitigation letters written by D, G
his father and girlfriend in support of the above mitigations.
H H
I 11. For Charge 1, Mr. Davies referred to R v Lau Tak Ming1 and I
HKSAR v Herry Jane Yusuph2, and submitted that the starting point for
J J
trafficking in 4.29 grammes of cocaine would be 39 months. He urged the
K Court to accept the mitigating factors mentioned above and accept that the K
circumstances are the least serious in this type of offence and D’s
L L
culpability is low.
M M
12. So far as Charge 2 is concerned, Mr. Davies cited HKSAR v
N N
Wu Kim Wan 3 and 2 District Court decisions 4 in support of his
O submissions that a fine would be sufficient in the context of the present O
case, but if imprisonment is considered appropriate, he would urge the
P P
Court to consider totality principle and order the sentence to run concurrent
Q or partly concurrent to the sentence for Charge 1. Q
R 1 R
[1990] 2 HKLR 370
2
[2021] 1 HKLRD 290, [2020] HKCA 974
S S
3
unrep. HCMA 1141/2001
T 4
HKSAR v Wong Ka Tuen DCCC 188/2014 and HKSAR v Lee Chun Yi DCCC 63/2022, [2022] T
HKDC 69
U U
V V
-6-
A A
B B
C Sentence C
D D
13. It is well established that the starting point for trafficking in
E up to 10 grammes of cocaine attracts a sentence of 2 to 5 years E
imprisonment if convicted after trial5.
F F
G 14. I bear in mind the comments by the Court of Appeal in G
HKSAR v Chan Yuk Leong6 that tariffs are not to be applied on a linear
H H
scale and that the court should not slavishly applying a strictly
I mathematical approach. I also bear in mind the approach in sentencing in I
this type of offences as laid down in Yusuph7.
J J
K 12. This case involved trafficking in 4.29 grammes of cocaine. I K
adopt 39 months as the starting point.
L L
M 13. In HKSAR v Godson Ugochukwu Okoro 8 , the Court of M
Appeal stated that sentencing guidelines were specifically directed to a
N N
courier or storekeeper and could be adjusted upwards for an actual
O trafficker. Mr. Davies submitted that D was in the category of a courier or O
storekeeper, I do not agree. D admitted that he purchased the cocaine to
P P
resell them for profit, he was therefore more akin to an actual trafficker.
Q Also, as conceded by Mr. Davies, previous similar convictions can be Q
R R
5
See R v Lau Tak Ming supra.and AG v Pedro Nel Rojas [1994] 2 HKCLR 69
S 6 S
unrep. CACC 318/2013, paras. 20 and 21
7
supra
T T
8
[2019] 2 HKLRD 451, [2019] HKCA 158
U U
V V
-7-
A A
B B
regarded as an aggravating factor9. For these 2 factors, I will adjust the
C starting point upwards by 3 months to 42 months. C
D D
14. Time and again the CA had stated that “Trafficking in
E dangerous drugs” is a very serious offence so that general deterrence takes E
precedent, the general background of D carries very little weight10.
F F
G 15. Mr. Davies submitted that D was a drug addict and part of the G
drugs seized was for his own consumption. I do not accept this, there is no
H H
evidence to support either that D was a drug addict at the time of arrest or
I that E1 or E2 was for self-consumption. I
J J
16. The only mitigating factor is D’s timely guilty plea. For this I
K will give him the full 1/3 discount. For Charge 1, D is sentenced to 28 K
months imprisonment.
L L
M 17. For Charge 2, the maximum sentence is HK$10,000 fine and M
imprisonment for 3 years. I accept that there is no evidence that D had used
N N
E7 before but he admitted that he kept it for self-defence, meaning that he
O was prepared to use it when and where necessary. I adopt 3 months as the O
starting point, reducing it by 1/3 for the timely guilty plea, and sentence D
P P
to 2 months imprisonment.
Q Q
18. The 2 offences are separate and distinct, so that the sentences
R R
should be served consecutively. Taking totality principle into account, I
S S
9
See e.g. HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 and HKSAR v Har Tsz Yui [2020] 1
HKLRD 307, [2019] HKCA 1336
T T
10
See, e.g., Yusuph supra, 314 paragraph 44
U U
V V
-8-
A A
B B
order that 1 month be run consecutively to Charge 1.
C C
16. D is sentenced as follows:
D D
Charge 1 : 28 months
E Charge 2 : 2 months, 1 month be run consecutively to Charge 1 E
Total sentence: 29 months.
F F
G G
H H
I I
( Bernard Chung )
Deputy District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 772/2023
[2024] HKDC 911
C C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 772 OF 2023
F F
G G
-----------------------------
H
HKSAR H
v
I I
CHAN Chin-ho Defendant
J ----------------------------- J
K K
L Before: Deputy District Judge Bernard Chung L
Date: 6 June 2024
M M
Present: Mr. Sammy Hui, Counsel on fiat, for HKSAR
N Mr. Davies Oliver Howell, instructed by Messrs Wong & Co., N
for the Defendant
O O
Offence: [1] Trafficking in a dangerous drug (販運危險藥物)
P [2] Possession of prohibited weapon (管有違禁武器) P
Q Q
-----------------------------------------
R R
REASONS FOR SENTENCE
S
----------------------------------------- S
T T
U U
V V
-2-
A A
B B
1. The defendant CHAN Chin-ho (D) pleaded guilty before me
C to 2 Charges. Charge 1 “Trafficking in dangerous drugs”, contrary to C
section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.
D D
Particulars of Offence stated that on 24 April 2023, at Room 713, Silka Far
E East Hotel, Nos. 135-143 Castle Peak Road, Tsuen Wan, he unlawfully E
trafficked in a dangerous drug, namely 5.83 grammes of a solid containing
F F
4.29 grammes of cocaine. Charge 2 “Possession of prohibited weapon”,
G contrary to section 4 of the Weapons Ordinance, Cap.217. Particulars of G
offence stated that at the same time and place, he had in his possession a
H H
gravity-operated steel baton.
I I
2. The facts of the case are simple and straightforward. At
J J
around 6:40 pm on 24 April 2023, a party of police officers intercepted D
K when he was entering Room 713 of Silka Far East Hotel in Tsuen Wan K
with his access card. The Police then conducted a search inside the room
L L
and found the following items:
M (a) A black re-sealable plastic bag containing 18 black re-sealable M
plastic bags containing a total of 5.74 grammes of a solid
N N
containing 4.29 grammes of cocaine (E1);
O (b) 2 folded HK$20 banknotes containing a total of 0.09 grammes O
of a solid containing cocaine (E2);
P P
(c) A digital scale (E3);
Q (d) A beaker (E4); Q
(e) 5 empty large black re-sealable plastic bags (E5);
R R
(f) A stack of smaller empty black re-sealable plastic bags (E6);
S (g) Cash HK$610; and S
(h) An extendable baton (E7).
T T
U U
V V
-3-
A A
B B
3. D was arrested. Under caution, he admitted that the dangerous
C drugs were cocaine and he delivered them for monetary reward, and he C
kept E7 for self-defense.
D D
E 4. In a subsequent video-recorded interview, D admitted, inter E
alia:
F F
(a) E1 to E7 belonged to him;
G (b) He bought the cocaine from a person named “Siu Ming” at G
Yen Chow Street in March 2023 for HK$10,000, and this “Siu
H H
Ming” introduced buyers to him for the drugs;
I (c) He sold the cocaine at HK$400 to HK$500 per packet; I
(d) He packaged the cocaine in question by himself;
J J
(e) The cash HK$610 was proceeds from drug trafficking
K activities; K
(f) He was unemployed;
L L
(g) He picked up E7 in Sham Shui Po and kept it in Room 713;
M and M
(h) One of the mobile phones found on him was given to him by
N N
“Siu Ming” for drug trafficking activities.
O O
5. E7 was examined by a Forensic Scientist who confirmed that
P P
it was 21 cm in length when retracted and 54 cm when fully extended, and
Q the inner and middle tubes could be extended by operation of gravity or a Q
combination of centrifugal force and gravity force.
R R
S 6. The estimated street value of E1 and E2 is HK$6,366. S
T T
7. D admitted that he possessed E1 and E2 for the purpose of
U U
V V
-4-
A A
B B
unlawful trafficking and E7, a prohibited weapon within the meaning of
C Cap. 217, for self-defence use. C
D D
Defendant’s Backgrounds and Mitigation
E E
8. D is 27 years old, born in Hong Kong on 26 September 1996.
F F
He received education up to Form 3 level and had worked as a
G transportation worker before. He is single and resided with his G
grandparents in a public housing unit in Cheung Shan Estate, Tsuen Wan.
H H
At the time of his arrest, he claimed to be living with his girlfriend at Room
I 713. He has 2 previous convictions for 3 offences, 2 counts of “Robbery” I
in December 2015 when he was sentenced to a total of 6 years 3 months
J J
imprisonment, and 1 count of “Trafficking in Dangerous Drugs” in August
K 2022 for which he was sentenced to 16 months. He committed the present K
offences just 2 months after his release from prison in February 2023. He
L L
was also sentenced to DATC in October 2015 for “Possession of
M Dangerous Drugs” with No Conviction Recorded. M
N N
9. Mr. Davies representing D submitted in mitigation that the
O parents of D divorced when he was very young. D was raised by his O
grandparents, who are in their 90s, and lived with them. He worked as a
P P
wine sales assistant at his father’s shop with a monthly salary of
Q HK$10,000, out of which he contributed HK$6,000 to his grandparents. D Q
committed the present offences out of financial pressure to take care of his
R R
elderly grandparents. At the time of the offences D also has a girlfriend
S who is aged 25 and worked as a sales representative. D has considered S
marriage with her after he serve out his sentence for the present case.
T T
U U
V V
-5-
A A
B B
10. Mr. Davies submitted that D is extremely remorseful and
C regret what he had done. He pleaded guilty on a timely basis, which saves C
the Court’s time and resources, and should be entitled to the full 1/3
D D
discount. Mr. Davies further submitted that D was a drug addict, as
E reflected by his previous possession conviction. Some parts of the drugs E
currently seized were for D’s own consumption. However, upon my
F F
enquiry, he stated that D will not provide any further evidence in support
G of this submission. Mr. Davies submitted 3 mitigation letters written by D, G
his father and girlfriend in support of the above mitigations.
H H
I 11. For Charge 1, Mr. Davies referred to R v Lau Tak Ming1 and I
HKSAR v Herry Jane Yusuph2, and submitted that the starting point for
J J
trafficking in 4.29 grammes of cocaine would be 39 months. He urged the
K Court to accept the mitigating factors mentioned above and accept that the K
circumstances are the least serious in this type of offence and D’s
L L
culpability is low.
M M
12. So far as Charge 2 is concerned, Mr. Davies cited HKSAR v
N N
Wu Kim Wan 3 and 2 District Court decisions 4 in support of his
O submissions that a fine would be sufficient in the context of the present O
case, but if imprisonment is considered appropriate, he would urge the
P P
Court to consider totality principle and order the sentence to run concurrent
Q or partly concurrent to the sentence for Charge 1. Q
R 1 R
[1990] 2 HKLR 370
2
[2021] 1 HKLRD 290, [2020] HKCA 974
S S
3
unrep. HCMA 1141/2001
T 4
HKSAR v Wong Ka Tuen DCCC 188/2014 and HKSAR v Lee Chun Yi DCCC 63/2022, [2022] T
HKDC 69
U U
V V
-6-
A A
B B
C Sentence C
D D
13. It is well established that the starting point for trafficking in
E up to 10 grammes of cocaine attracts a sentence of 2 to 5 years E
imprisonment if convicted after trial5.
F F
G 14. I bear in mind the comments by the Court of Appeal in G
HKSAR v Chan Yuk Leong6 that tariffs are not to be applied on a linear
H H
scale and that the court should not slavishly applying a strictly
I mathematical approach. I also bear in mind the approach in sentencing in I
this type of offences as laid down in Yusuph7.
J J
K 12. This case involved trafficking in 4.29 grammes of cocaine. I K
adopt 39 months as the starting point.
L L
M 13. In HKSAR v Godson Ugochukwu Okoro 8 , the Court of M
Appeal stated that sentencing guidelines were specifically directed to a
N N
courier or storekeeper and could be adjusted upwards for an actual
O trafficker. Mr. Davies submitted that D was in the category of a courier or O
storekeeper, I do not agree. D admitted that he purchased the cocaine to
P P
resell them for profit, he was therefore more akin to an actual trafficker.
Q Also, as conceded by Mr. Davies, previous similar convictions can be Q
R R
5
See R v Lau Tak Ming supra.and AG v Pedro Nel Rojas [1994] 2 HKCLR 69
S 6 S
unrep. CACC 318/2013, paras. 20 and 21
7
supra
T T
8
[2019] 2 HKLRD 451, [2019] HKCA 158
U U
V V
-7-
A A
B B
regarded as an aggravating factor9. For these 2 factors, I will adjust the
C starting point upwards by 3 months to 42 months. C
D D
14. Time and again the CA had stated that “Trafficking in
E dangerous drugs” is a very serious offence so that general deterrence takes E
precedent, the general background of D carries very little weight10.
F F
G 15. Mr. Davies submitted that D was a drug addict and part of the G
drugs seized was for his own consumption. I do not accept this, there is no
H H
evidence to support either that D was a drug addict at the time of arrest or
I that E1 or E2 was for self-consumption. I
J J
16. The only mitigating factor is D’s timely guilty plea. For this I
K will give him the full 1/3 discount. For Charge 1, D is sentenced to 28 K
months imprisonment.
L L
M 17. For Charge 2, the maximum sentence is HK$10,000 fine and M
imprisonment for 3 years. I accept that there is no evidence that D had used
N N
E7 before but he admitted that he kept it for self-defence, meaning that he
O was prepared to use it when and where necessary. I adopt 3 months as the O
starting point, reducing it by 1/3 for the timely guilty plea, and sentence D
P P
to 2 months imprisonment.
Q Q
18. The 2 offences are separate and distinct, so that the sentences
R R
should be served consecutively. Taking totality principle into account, I
S S
9
See e.g. HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 and HKSAR v Har Tsz Yui [2020] 1
HKLRD 307, [2019] HKCA 1336
T T
10
See, e.g., Yusuph supra, 314 paragraph 44
U U
V V
-8-
A A
B B
order that 1 month be run consecutively to Charge 1.
C C
16. D is sentenced as follows:
D D
Charge 1 : 28 months
E Charge 2 : 2 months, 1 month be run consecutively to Charge 1 E
Total sentence: 29 months.
F F
G G
H H
I I
( Bernard Chung )
Deputy District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V