HKSAR v. CHAN TAT WING

DCCC 552/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 552 OF 2014

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HKSAR
v.
CHAN Tat-wing
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Before: HH Judge E. Yip

Date: 5th May 2015 at 10:36 am

Present: Mr Anthony SHERRY,Counsel on fiat, for HKSAR
Mr LUK King Wang,instructed by M/s Francis Kong & Co assignedby DLA for Defendant

Offence: [1] Trafficking in dangerous drugs (販運危險藥物)
[2] Possession of apparatuses fit and intended for the inhalation of a dangerous drug (管有適合於及擬用作吸服危險藥物的器具)

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Reasons for Sentence

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Chargesand facts

1. The Defendant pleads guilty to trafficking in dangerous drugs, ie methamphetamine hydrochloride (“Ice”) and heroin hydrochloride(1st Charge) and possession of apparatuses fit and intended for the inhalation of a dangerous drug (2nd Charge).

2. At 0020 h on 15 April 2014, the police intercepted a female, TAM, who looked suspicious on 2/F, No. 67 Nam Cheong Street, Sham ShuiPo. She said that she resided with her boyfriend (later known to be the Defendant) in a sub-divided unit on that floor. She broughtthem to the unit, Room 7, for her identity card. Room 7 had its door open with the Defendant sitting on a chair. Two flasks, withstraws and liquid inside (later found to contain traces of Ice) were on a bed next to him. A handwritten label in Chinese characters,meaning “not to be borrowed”, was on one of the flasks. He was very nervous. The police arrested him for possession of apparatus fit and intended for inhalationof a dangerous drug. After caution, he said that it was for his own fun.

3. He was seen pressing the shoulder bag he was carrying. A search of the shoulder bag revealed the following:

(1) 7 re-sealable plastic bags containing Ice of various quantities, in total 8.08 grammes of a mixture containing 7.83 grammes ofIce;

(2) 31 packets of plastic wrappings containing heroin hydrochloride of various quantities, in total 8.79 grammes of a mixture containing5.24 grammes of heroin hydrochloride.

4. After arrest and caution, he said that the Ice and the heroin were for his own consumption.

5. Investigation revealed that Room 7 had been rented by the Defendant for $1,500 per month since February 2014. He had $80 with him.

6. The estimated street value of the dangerous drugs was $11,108.

7. At all material times, the Defendant possessed the dangerous drugs for the purpose of unlawful trafficking.

Mitigation

8. He is 41 years of age, educated up to F. 3 level. He lived with his aged mother, wife, and 2 daughters. His wife worked as a salesassistant. He worked as a carpenter. His income was insufficient. So he committed the present offence to make money. TAM in thepresent case was an ex-girl friend that he met again by chance. They became close again but had already separated after the presentoffences.

9. He had a clear record when he was arrested. Afterwards, he committed the offence of possession of a dangerous drug. He was thensentenced to DATC. He was released a few weeks before today.

Sentencing considerations

10. In Attorney General v Ching Kwok-hung [1991] 2 HKLR 125, later emended in HKSAR v Capitania [2004] HKCU 926, the Court of Appeal stated that a trafficker of “Ice” of up to 10 grammes shall face 3 – 7 years’ imprisonment.

11. In R v Lau Tak-ming [1990] 2 HKC 370, the Court of Appeal stated that a trafficker of heroin of up to 10 grammes shall face 2 – 5 years’ imprisonment.

12. There is no sentence guideline for possession of apparatus for inhaling a dangerous drug.

Sentencing this Defendant

13. I take 5 years as the starting point for the 1st Charge. One-third off for his guilty plea, the sentence is 40 months. There are no other mitigating factors.

14. I take 9 months as the starting point for the 2nd Charge. One-third off for his guilty plea, the sentence is 6 months. There are no other mitigating factors.

15. By totality, I order the sentences to be concurrent.

(E. Yip)
District Judge