A A
HCCC 130/2016
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 130 OF 2016
D ----------------- D
HKSAR
E v E
F
CHOI Chi-pang F
------------------
G G
Before: DHCJ Saw
Date: 24 May 2016 at 10.25 am
H Present: Mr Harish Melwaney, SPP of the Department of Justice, H
for HKSAR
I Mr Duncan Percy, instructed by the Legal Aid I
Department, for the accused
Offence: (1) Possession of a dangerous drug (管有危險藥物)
J (2) Trafficking in a dangerous drug (販運危險藥物) J
K --------------------------------- K
Transcript of the Audio Recording
of the Sentence in the above Case
L --------------------------------- L
COURT: On the 11th of March of this year, the defendant pleaded
M guilty at the Eastern Magistracy to two charges, namely: M
N
(1) Possession of a dangerous drug, contrary to N
section 8(1)(a) and (2) of Chapter 134 of the
Laws of Hong Kong; and
O O
(2) Trafficking in a dangerous drug, contrary to
section 4(1)(a) and (3) of Chapter 134 of the
P Laws of Hong Kong. P
Q A summary of the facts submitted by the prosecution in Q
support of those charges was read in court and admitted by
the defendant. He was thus committed to this court for
R sentence as provided for by section 81B of the Magistrates R
Ordinance, Cap 227 of the Laws of Hong Kong.
S Today before me he has confirmed his earlier pleas of S
guilty and that summary of facts.
T T
Charge 1 alleged that the defendant was, on 19 May 2015,
outside 6 Arthur Street, Yau Ma Tai in Kowloon, in
U U
CRT28/24.5.2016/TW/ag 1 HCCC 130/2016/Sentence
V V
A A
possession of a dangerous drug, namely 2.32 grammes of
methamphetamine hydrochloride.
B B
Charge 2 alleged that the defendant, on 3 June 2015, at the
staircase near the 1st floor, 81 San Fung Avenue in Sheung
C C
Shui in the New Territories, unlawfully trafficked in a
dangerous drug, namely 1.24 kilogrammes of a powder
D containing 312 grammes of ketamine. D
The summary of facts reveal the following.
E E
As to Charge 1, on 19 May 2015, at around 11.35 am, a
patrolling police officer intercepted the defendant outside
F 6 Arthur Street in Yau Ma Tei. He was searched and was F
found to be in possession of a tinfoil packet which the
G
police officer suspected contained a dangerous drug. He G
was arrested and cautioned by the police officer for the
offence of being in possession of a dangerous drug.
H H
In response to that caution, the defendant told the police
officer that the drug was ‘Ice’ and that it was for his own
I consumption and had been purchased by him the previous I
evening for $1,000.
J J
He was taken to the Yau Ma Tei Police Station where after
confirming his earlier admissions in response to the
K caution, he was released on bail. K
The drug found in his possession was analysed by the
L Government Chemist and determined to be 2.32 grammes of L
methamphetamine hydrochloride.
M Insofar as Charge 2 is concerned, the facts reveal the M
following.
N N
At around 3.40 pm on 3 June 2015, Customs officers were
observing a seven-seat motor vehicle which had earlier
O entered into Hong Kong via the Lok Ma Chau Boundary Control O
Point. That vehicle was then heading in the direction of
Sheung Shui. At about 3.35 pm, the defendant was seen to
P alight from the vehicle at Lung Sum Avenue and was kept P
under observation. Some 25 minutes later he was
intercepted by the Customs officers and searched. Around
Q Q
his waist they found a transparent plastic bag wrapped with
adhesive tape and this, they suspected, contained dangerous
R drugs. R
He was arrested and cautioned, and in response said that
S the plastic bag contained ketamine which was for his own S
consumption.
T The contents of the plastic bag was subsequently analysed T
by the Government Chemist and was found to contain 1.24
U kilogrammes of a powder containing 312 grammes of ketamine. U
CRT28/24.5.2016/TW/ag 2 HCCC 130/2016/Sentence
V V
A A
It was an admitted fact that the value of the ketamine was
estimated to be $158,720.
B B
The travel movement record of the defendant showed that he
had last left Hong Kong for China via the Lok Ma Chau
C C
Control Point at around 3.20 pm on 1 June 2015 and had
returned to Hong Kong at around 3.40 pm on 3 June 2015 via
D the same boundary control point. D
In the course of the proceedings before me today, an
E antecedents statement, which had been prepared by Customs E
and Excise officers, was read in court. Amongst other
things, it confirmed that he is 28 years of age; he has
F convictions going back as far as 2002, the last conviction F
was in 2005 - none of those convictions were for
G drug-related matters. It indicated in the document that he G
was a waiter earning some $14,000 per month, and more
importantly he had asserted that he was not himself a drug
H abuser. H
Mr Percy, on his behalf, objected to that assertion and
I indicated to me that his instructions were not only had he I
not said this to the officer who had prepared that
J document, but that, in fact, as is indicated by his J
response on both occasions to his arrest, that he had been
a user of drugs for some time. Mr Percy’s instructions
K were that whoever had prepared that document had not K
interviewed the defendant.
L I have indicated that it would be of benefit to all L
concerned in due course if Mr Melwaney, on behalf of the
M
prosecution, were take up this matter with those concerned. M
Whilst not specifically asked by me, it would appear that
N no issue is taken by the prosecution with the assertion N
that the defendant was himself a drug user and now I
proceed to deal with the matter on that basis.
O O
On his behalf, Mr Percy has told me today that the
defendant is, indeed, a person who is drug-addicted and
P P
that the methamphetamine hydrochloride, the subject of
Charge 1, was for his own consumption, and that one-third
Q of the ketamine, the subject of Charge 2, was likewise for Q
his own consumption.
R In particular, Mr Percy said that his instructions were R
that insofar as Charge 2 was concerned, the defendant had
agreed to be paid the sum of $5,000 and to receive
S one-third of the quantity of ketamine for bringing it into S
Hong Kong on the day of the offence.
T T
Whilst I would accept that a portion of the ketamine may
well have been for his own consumption, I have indicated to
U Mr Percy that I am not persuaded that one-third is for his U
CRT28/24.5.2016/TW/ag 3 HCCC 130/2016/Sentence
V V
A A
own consumption. It has not been suggested that this
matter should be the subject of any further inquiry.
B B
Turning now to the correct approach to sentencing. Dealing
first with Count 1, I believe - and this was the submission
C C
of Mr Percy - that the appropriate starting point before
trial for simple possession in the circumstances of this
D case is 12 months’ imprisonment. From that, of course, he D
is entitled to a full one-third discount to reflect his
plea of guilty.
E E
Dealing now with Count 2, the Court of Appeal in 2009 has
provided guidance for sentences dealing with trafficking in
F quantities of the drug ketamine. I refer specifically to F
Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.
G In that judgment, the Court of Appeal has indicated that G
for between 300 and 600 grammes of ketamine, a sentence
before trial without additional aggravating factors was
H between 9 and 12 years’ imprisonment. In the circumstances H
of the present case given the quantity, I believe that the
correct starting point before aggravation is one of 9 years
I I
for Count 2.
J Are there aggravating factors in the circumstances of this J
case? Mr Percy accepts that the importation of this drug
into Hong Kong is such an aggravating factor. Given the
K quantity of the drugs involved and the nature of the drug, K
I am of the opinion that 12 months is the appropriate
aggravating factor to be added to the starting point of
L 9 years. L
M
Quite obviously, the defendant is entitled to a full M
one-third discount from that starting point. That would
result for Count 2, without other matters taken into
N account, of a sentence of 6 years and 8 months’ N
imprisonment.
O As I have said, I do not accept the bald assertion that O
one-third of these drugs were for the defendant’s
consumption. I do accept that some portion, albeit a small
P P
portion, is for his own consumption. Taking this into
account and the plea of guilty, as I have indicated, I
Q believe the appropriate sentence on Count 2 is one of Q
6 years’ imprisonment.
R That then brings me back to the approach to the two R
charges, Counts 1 and 2. There are two factors of
significance here: the first is that Count 1 is a separate
S S
and discrete offence which, in the normal course of events,
would require a consecutive or partially consecutive
T sentence; the second matter is the question of totality. T
Taking all into account, including the early plea and
U including the significant sentence which is to be imposed U
CRT28/24.5.2016/TW/ag 4 HCCC 130/2016/Sentence
V V
A A
on Count 2, I am minded to order that the whole of the
sentence on Count 1 be served concurrent to the sentence on
B Count 2. B
For the avoidance of doubt, the sentence on Count 1 is one
C C
of 8 months’ imprisonment; the sentence on Count 2 is one
of 6 years’ imprisonment, and I direct that both sentences
D be concurrent one to the other. D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT28/24.5.2016/TW/ag 5 HCCC 130/2016/Sentence
V V
A A
HCCC 130/2016
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 130 OF 2016
D ----------------- D
HKSAR
E v E
F
CHOI Chi-pang F
------------------
G G
Before: DHCJ Saw
Date: 24 May 2016 at 10.25 am
H Present: Mr Harish Melwaney, SPP of the Department of Justice, H
for HKSAR
I Mr Duncan Percy, instructed by the Legal Aid I
Department, for the accused
Offence: (1) Possession of a dangerous drug (管有危險藥物)
J (2) Trafficking in a dangerous drug (販運危險藥物) J
K --------------------------------- K
Transcript of the Audio Recording
of the Sentence in the above Case
L --------------------------------- L
COURT: On the 11th of March of this year, the defendant pleaded
M guilty at the Eastern Magistracy to two charges, namely: M
N
(1) Possession of a dangerous drug, contrary to N
section 8(1)(a) and (2) of Chapter 134 of the
Laws of Hong Kong; and
O O
(2) Trafficking in a dangerous drug, contrary to
section 4(1)(a) and (3) of Chapter 134 of the
P Laws of Hong Kong. P
Q A summary of the facts submitted by the prosecution in Q
support of those charges was read in court and admitted by
the defendant. He was thus committed to this court for
R sentence as provided for by section 81B of the Magistrates R
Ordinance, Cap 227 of the Laws of Hong Kong.
S Today before me he has confirmed his earlier pleas of S
guilty and that summary of facts.
T T
Charge 1 alleged that the defendant was, on 19 May 2015,
outside 6 Arthur Street, Yau Ma Tai in Kowloon, in
U U
CRT28/24.5.2016/TW/ag 1 HCCC 130/2016/Sentence
V V
A A
possession of a dangerous drug, namely 2.32 grammes of
methamphetamine hydrochloride.
B B
Charge 2 alleged that the defendant, on 3 June 2015, at the
staircase near the 1st floor, 81 San Fung Avenue in Sheung
C C
Shui in the New Territories, unlawfully trafficked in a
dangerous drug, namely 1.24 kilogrammes of a powder
D containing 312 grammes of ketamine. D
The summary of facts reveal the following.
E E
As to Charge 1, on 19 May 2015, at around 11.35 am, a
patrolling police officer intercepted the defendant outside
F 6 Arthur Street in Yau Ma Tei. He was searched and was F
found to be in possession of a tinfoil packet which the
G
police officer suspected contained a dangerous drug. He G
was arrested and cautioned by the police officer for the
offence of being in possession of a dangerous drug.
H H
In response to that caution, the defendant told the police
officer that the drug was ‘Ice’ and that it was for his own
I consumption and had been purchased by him the previous I
evening for $1,000.
J J
He was taken to the Yau Ma Tei Police Station where after
confirming his earlier admissions in response to the
K caution, he was released on bail. K
The drug found in his possession was analysed by the
L Government Chemist and determined to be 2.32 grammes of L
methamphetamine hydrochloride.
M Insofar as Charge 2 is concerned, the facts reveal the M
following.
N N
At around 3.40 pm on 3 June 2015, Customs officers were
observing a seven-seat motor vehicle which had earlier
O entered into Hong Kong via the Lok Ma Chau Boundary Control O
Point. That vehicle was then heading in the direction of
Sheung Shui. At about 3.35 pm, the defendant was seen to
P alight from the vehicle at Lung Sum Avenue and was kept P
under observation. Some 25 minutes later he was
intercepted by the Customs officers and searched. Around
Q Q
his waist they found a transparent plastic bag wrapped with
adhesive tape and this, they suspected, contained dangerous
R drugs. R
He was arrested and cautioned, and in response said that
S the plastic bag contained ketamine which was for his own S
consumption.
T The contents of the plastic bag was subsequently analysed T
by the Government Chemist and was found to contain 1.24
U kilogrammes of a powder containing 312 grammes of ketamine. U
CRT28/24.5.2016/TW/ag 2 HCCC 130/2016/Sentence
V V
A A
It was an admitted fact that the value of the ketamine was
estimated to be $158,720.
B B
The travel movement record of the defendant showed that he
had last left Hong Kong for China via the Lok Ma Chau
C C
Control Point at around 3.20 pm on 1 June 2015 and had
returned to Hong Kong at around 3.40 pm on 3 June 2015 via
D the same boundary control point. D
In the course of the proceedings before me today, an
E antecedents statement, which had been prepared by Customs E
and Excise officers, was read in court. Amongst other
things, it confirmed that he is 28 years of age; he has
F convictions going back as far as 2002, the last conviction F
was in 2005 - none of those convictions were for
G drug-related matters. It indicated in the document that he G
was a waiter earning some $14,000 per month, and more
importantly he had asserted that he was not himself a drug
H abuser. H
Mr Percy, on his behalf, objected to that assertion and
I indicated to me that his instructions were not only had he I
not said this to the officer who had prepared that
J document, but that, in fact, as is indicated by his J
response on both occasions to his arrest, that he had been
a user of drugs for some time. Mr Percy’s instructions
K were that whoever had prepared that document had not K
interviewed the defendant.
L I have indicated that it would be of benefit to all L
concerned in due course if Mr Melwaney, on behalf of the
M
prosecution, were take up this matter with those concerned. M
Whilst not specifically asked by me, it would appear that
N no issue is taken by the prosecution with the assertion N
that the defendant was himself a drug user and now I
proceed to deal with the matter on that basis.
O O
On his behalf, Mr Percy has told me today that the
defendant is, indeed, a person who is drug-addicted and
P P
that the methamphetamine hydrochloride, the subject of
Charge 1, was for his own consumption, and that one-third
Q of the ketamine, the subject of Charge 2, was likewise for Q
his own consumption.
R In particular, Mr Percy said that his instructions were R
that insofar as Charge 2 was concerned, the defendant had
agreed to be paid the sum of $5,000 and to receive
S one-third of the quantity of ketamine for bringing it into S
Hong Kong on the day of the offence.
T T
Whilst I would accept that a portion of the ketamine may
well have been for his own consumption, I have indicated to
U Mr Percy that I am not persuaded that one-third is for his U
CRT28/24.5.2016/TW/ag 3 HCCC 130/2016/Sentence
V V
A A
own consumption. It has not been suggested that this
matter should be the subject of any further inquiry.
B B
Turning now to the correct approach to sentencing. Dealing
first with Count 1, I believe - and this was the submission
C C
of Mr Percy - that the appropriate starting point before
trial for simple possession in the circumstances of this
D case is 12 months’ imprisonment. From that, of course, he D
is entitled to a full one-third discount to reflect his
plea of guilty.
E E
Dealing now with Count 2, the Court of Appeal in 2009 has
provided guidance for sentences dealing with trafficking in
F quantities of the drug ketamine. I refer specifically to F
Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.
G In that judgment, the Court of Appeal has indicated that G
for between 300 and 600 grammes of ketamine, a sentence
before trial without additional aggravating factors was
H between 9 and 12 years’ imprisonment. In the circumstances H
of the present case given the quantity, I believe that the
correct starting point before aggravation is one of 9 years
I I
for Count 2.
J Are there aggravating factors in the circumstances of this J
case? Mr Percy accepts that the importation of this drug
into Hong Kong is such an aggravating factor. Given the
K quantity of the drugs involved and the nature of the drug, K
I am of the opinion that 12 months is the appropriate
aggravating factor to be added to the starting point of
L 9 years. L
M
Quite obviously, the defendant is entitled to a full M
one-third discount from that starting point. That would
result for Count 2, without other matters taken into
N account, of a sentence of 6 years and 8 months’ N
imprisonment.
O As I have said, I do not accept the bald assertion that O
one-third of these drugs were for the defendant’s
consumption. I do accept that some portion, albeit a small
P P
portion, is for his own consumption. Taking this into
account and the plea of guilty, as I have indicated, I
Q believe the appropriate sentence on Count 2 is one of Q
6 years’ imprisonment.
R That then brings me back to the approach to the two R
charges, Counts 1 and 2. There are two factors of
significance here: the first is that Count 1 is a separate
S S
and discrete offence which, in the normal course of events,
would require a consecutive or partially consecutive
T sentence; the second matter is the question of totality. T
Taking all into account, including the early plea and
U including the significant sentence which is to be imposed U
CRT28/24.5.2016/TW/ag 4 HCCC 130/2016/Sentence
V V
A A
on Count 2, I am minded to order that the whole of the
sentence on Count 1 be served concurrent to the sentence on
B Count 2. B
For the avoidance of doubt, the sentence on Count 1 is one
C C
of 8 months’ imprisonment; the sentence on Count 2 is one
of 6 years’ imprisonment, and I direct that both sentences
D be concurrent one to the other. D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT28/24.5.2016/TW/ag 5 HCCC 130/2016/Sentence
V V