A A
HCCC 393/2016
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 393 OF 2016
D ----------------- D
HKSAR
E v E
F CHAN Kam-che (陳錦枝) F
------------------
G G
Before: Hon Anthea Pang J
H Date: 10 November 2016 at 9.54 am H
Present: Ms Grace Chan, SPP of the Department of Justice,
for HKSAR
I Mr Jackson Poon Chin-ping, instructed by Lau, Chan & I
Ko, assigned by DLA, for the accused
J
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)
(3) Possession of an offensive weapon in a public
K place (在公眾地方管有攻擊性武器) K
L --------------------------------- L
Transcript of the Audio Recording
of the Sentence in the above Case
M --------------------------------- M
COURT: This is the court’s sentence.
N N
Background and the Facts
O O
The accused pleaded guilty in the Eastern Magistrates
Courts to the following charges:
P P
(1) Possession of a dangerous drug;
Q (2) Trafficking in a dangerous drug; and Q
(3) Possession of an offensive weapon in a public place,
R contrary to section 33(1) and (2) of the Public Order R
Ordinance, Chapter 245.
S S
He was committed to this court for sentence. This morning,
the accused confirmed his pleas before me and accepted the
T Summary of Facts. T
Briefly, the accused was stopped by the police in the small
U hours of 12 February 2016 as he was acting furtively at the U
CRT24/10.11.2016/TW/cc 1 HCCC 393/2016/Sentence
V V
A A
time. Upon search, the drug particularised in Count 1,
that is 0.96 gramme of a crystalline solid containing 0.95
B gramme of methamphetamine hydrochloride, that is ‘Ice’, was B
found in a cigarette box inside his right trousers pocket.
Under caution, the accused admitted that the drug was for
C C
his own consumption.
D Separately, the police also found a beef knife inside the D
rucksack which was carried by the accused at that time. I
have examined the knife in court; it is with a sharp edge
E and blade and it can be described as a lethal weapon. This E
is the subject matter of the possession of an offensive
weapon in a public place in Count 3. Under caution, the
F F
accused claimed that he intended to bring the knife back to
his home for cooking and forgot to take it out. The
G accused also said that the paper sheath was made by him. G
After the accused was brought back to the police station
H and upon a further search, a bag containing seven packets H
of ‘Ice’ was found on the accused’s person. Under caution,
the accused admitted having agreed to deliver the drug to
I I
Jordan for a reward of a few hundred dollars. He confirmed
the same in a subsequent video-recorded interview. The
J drug in these seven packets was examined to be 9.94 grammes J
of a crystalline solid containing 9.81 grammes of ‘Ice’.
K The estimated street value of the drug was about $3,300. K
This is the subject matter of the 2nd count.
L The Accused’s Background and Mitigation L
The accused is aged 50 and is divorced. He was educated up
M M
to Form 1 level in Hong Kong. At the time of his arrest,
the accused was a decoration worker, earning about $20,000
N per month, giving about $1,000 to $2,000 to his elderly N
mother for her maintenance.
O The accused has got ten previous criminal convictions O
including two offences of trafficking in a dangerous drug,
four of possession of a dangerous drug, indecent assault,
P P
attempted theft, riot and arson. He was last discharged
from the prison in July 2009.
Q Q
In mitigation, a letter written by the accused himself was
handed to the court in which he stated that although he has
R had a number of criminal convictions, his elderly parents R
still supported him. He told the court that he would
therefore never reoffend again and he asked for a lenient
S sentence. S
Sentencing Considerations
T T
The tariffs for trafficking in ‘Ice’ were laid down in
U Attorney General v Ching Kwok Hung [1991] 2 HKLR 125 and U
CRT24/10.11.2016/TW/cc 2 HCCC 393/2016/Sentence
V V
A A
corrected in HKSAR v Capitania, CACC 28/2004, 11 August
2004 (unreported). For trafficking up to 10 grammes of
B ‘Ice’, a term of 3 to 7 years’ imprisonment is called for. B
Recently, the above guidelines were revised by the Court of
Appeal in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD
C C
691 but the revision does not affect this band of the
amount of ‘Ice’ involved here.
D D
In HKSAR v Mok Cho Tik [2001] 1 HKC 261, the Court of
Appeal observed that the starting point for mere possession
E of a quantity of dangerous drugs which a bona fide user E
would normally have in his possession should be in the
range of 12 to 18 months’ imprisonment. As for the offence
F F
of possession of an offensive weapon in a public place,
there is no tariff.
G G
This Case’s Sentence
H Having considered the facts of this case and the amount of H
‘Ice’ involved in the respective charges, I am going to
adopt the following starting points: one of 12 months for
I Count 1; one of 7 years for Count 2; and one of 9 months I
for Count 3. The accused pleaded guilty at the committal
J stage and he would receive a one-third reduction in J
sentence. Other than this, there is nothing which would
warrant any further reduction in sentence.
K K
For the 1st count, 12 months reduced by one-third, is 8
months’ imprisonment. For the 2nd count, 7 years reduced
L by one-third, is 56 months’ imprisonment. For the 3rd L
count, 9 months reduced by one-third, is 6 months’
M
imprisonment. M
These are separate offences and the sentences should be
N served consecutively. However, having considered the N
totality principle, I take the view that an overall
sentence of 60 months should sufficiently reflect the
O accused’s overall criminality in this case. As such, I O
order that both terms in respect of the 1st and the 2nd
counts are to run wholly concurrently while 4 months of the
P P
term imposed for the 3rd count are to run wholly
consecutively to those of the 1st and the 2nd counts,
Q resulting in a total term of 60 months’ imprisonment. Q
R R
I/we certify that to the best of our ability and
skill, the foregoing is a true transcript of the
audio recording of the above proceedings
S S
T T
..........................................
Tolaigus Wan
Date: 21 November 2016
U U
CRT24/10.11.2016/TW/cc 3 HCCC 393/2016/Sentence
V V
A A
HCCC 393/2016
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 393 OF 2016
D ----------------- D
HKSAR
E v E
F CHAN Kam-che (陳錦枝) F
------------------
G G
Before: Hon Anthea Pang J
H Date: 10 November 2016 at 9.54 am H
Present: Ms Grace Chan, SPP of the Department of Justice,
for HKSAR
I Mr Jackson Poon Chin-ping, instructed by Lau, Chan & I
Ko, assigned by DLA, for the accused
J
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)
(3) Possession of an offensive weapon in a public
K place (在公眾地方管有攻擊性武器) K
L --------------------------------- L
Transcript of the Audio Recording
of the Sentence in the above Case
M --------------------------------- M
COURT: This is the court’s sentence.
N N
Background and the Facts
O O
The accused pleaded guilty in the Eastern Magistrates
Courts to the following charges:
P P
(1) Possession of a dangerous drug;
Q (2) Trafficking in a dangerous drug; and Q
(3) Possession of an offensive weapon in a public place,
R contrary to section 33(1) and (2) of the Public Order R
Ordinance, Chapter 245.
S S
He was committed to this court for sentence. This morning,
the accused confirmed his pleas before me and accepted the
T Summary of Facts. T
Briefly, the accused was stopped by the police in the small
U hours of 12 February 2016 as he was acting furtively at the U
CRT24/10.11.2016/TW/cc 1 HCCC 393/2016/Sentence
V V
A A
time. Upon search, the drug particularised in Count 1,
that is 0.96 gramme of a crystalline solid containing 0.95
B gramme of methamphetamine hydrochloride, that is ‘Ice’, was B
found in a cigarette box inside his right trousers pocket.
Under caution, the accused admitted that the drug was for
C C
his own consumption.
D Separately, the police also found a beef knife inside the D
rucksack which was carried by the accused at that time. I
have examined the knife in court; it is with a sharp edge
E and blade and it can be described as a lethal weapon. This E
is the subject matter of the possession of an offensive
weapon in a public place in Count 3. Under caution, the
F F
accused claimed that he intended to bring the knife back to
his home for cooking and forgot to take it out. The
G accused also said that the paper sheath was made by him. G
After the accused was brought back to the police station
H and upon a further search, a bag containing seven packets H
of ‘Ice’ was found on the accused’s person. Under caution,
the accused admitted having agreed to deliver the drug to
I I
Jordan for a reward of a few hundred dollars. He confirmed
the same in a subsequent video-recorded interview. The
J drug in these seven packets was examined to be 9.94 grammes J
of a crystalline solid containing 9.81 grammes of ‘Ice’.
K The estimated street value of the drug was about $3,300. K
This is the subject matter of the 2nd count.
L The Accused’s Background and Mitigation L
The accused is aged 50 and is divorced. He was educated up
M M
to Form 1 level in Hong Kong. At the time of his arrest,
the accused was a decoration worker, earning about $20,000
N per month, giving about $1,000 to $2,000 to his elderly N
mother for her maintenance.
O The accused has got ten previous criminal convictions O
including two offences of trafficking in a dangerous drug,
four of possession of a dangerous drug, indecent assault,
P P
attempted theft, riot and arson. He was last discharged
from the prison in July 2009.
Q Q
In mitigation, a letter written by the accused himself was
handed to the court in which he stated that although he has
R had a number of criminal convictions, his elderly parents R
still supported him. He told the court that he would
therefore never reoffend again and he asked for a lenient
S sentence. S
Sentencing Considerations
T T
The tariffs for trafficking in ‘Ice’ were laid down in
U Attorney General v Ching Kwok Hung [1991] 2 HKLR 125 and U
CRT24/10.11.2016/TW/cc 2 HCCC 393/2016/Sentence
V V
A A
corrected in HKSAR v Capitania, CACC 28/2004, 11 August
2004 (unreported). For trafficking up to 10 grammes of
B ‘Ice’, a term of 3 to 7 years’ imprisonment is called for. B
Recently, the above guidelines were revised by the Court of
Appeal in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD
C C
691 but the revision does not affect this band of the
amount of ‘Ice’ involved here.
D D
In HKSAR v Mok Cho Tik [2001] 1 HKC 261, the Court of
Appeal observed that the starting point for mere possession
E of a quantity of dangerous drugs which a bona fide user E
would normally have in his possession should be in the
range of 12 to 18 months’ imprisonment. As for the offence
F F
of possession of an offensive weapon in a public place,
there is no tariff.
G G
This Case’s Sentence
H Having considered the facts of this case and the amount of H
‘Ice’ involved in the respective charges, I am going to
adopt the following starting points: one of 12 months for
I Count 1; one of 7 years for Count 2; and one of 9 months I
for Count 3. The accused pleaded guilty at the committal
J stage and he would receive a one-third reduction in J
sentence. Other than this, there is nothing which would
warrant any further reduction in sentence.
K K
For the 1st count, 12 months reduced by one-third, is 8
months’ imprisonment. For the 2nd count, 7 years reduced
L by one-third, is 56 months’ imprisonment. For the 3rd L
count, 9 months reduced by one-third, is 6 months’
M
imprisonment. M
These are separate offences and the sentences should be
N served consecutively. However, having considered the N
totality principle, I take the view that an overall
sentence of 60 months should sufficiently reflect the
O accused’s overall criminality in this case. As such, I O
order that both terms in respect of the 1st and the 2nd
counts are to run wholly concurrently while 4 months of the
P P
term imposed for the 3rd count are to run wholly
consecutively to those of the 1st and the 2nd counts,
Q resulting in a total term of 60 months’ imprisonment. Q
R R
I/we certify that to the best of our ability and
skill, the foregoing is a true transcript of the
audio recording of the above proceedings
S S
T T
..........................................
Tolaigus Wan
Date: 21 November 2016
U U
CRT24/10.11.2016/TW/cc 3 HCCC 393/2016/Sentence
V V