HKSAR v. Lai Man Lung

DCCC 1083/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1083 OF 2015

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REASONS FOR SENTENCE

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INTRODUCTION

1.On 15 April 2016, the defendant appeared before this court and pleaded guilty to the two charges preferred against him by the prosecution, namely, trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (the first charge), and possession of apparatus fit and intended for the inhalation of a dangerous drug, contrary to section 36(1) and (2) of the Ordinance (the second charge). 

2.The court raised an issue with respect to the validity of the second charge.  Neither the prosecution nor the defence appeared to have addressed their mind to the time limit[1] within which the second charge – which contained a summary offence[2] – must be laid.   Mr Sammy Hui, prosecuting on fiat, sought instructions from the Department of Justice and confirmed that when the defendant was prosecuted with the offence of possession of apparatus fit and intended for the inhalation of a dangerous drug in the second charge, the charge had already become time-barred.  In consequence, the defendant’s guilty plea to the second charge was vacated, and the charge was formally withdrawn.  In the end, the defendant was convicted, on his guilty plea, of the sole remaining charge of trafficking in a dangerous drug.

FACTS

3.On the afternoon of 29 August 2014, a team of police officers demanded to enter the defendant’s residence at Room 1709, Yiu Hing House, Tin Yiu (I) Estate, Tin Shui Wai, New Territories, a public unit which was about to be returned to the Housing Authority.  Several minutes later, the defendant answered the door.  Inside the unit, the police found, apart from the defendant himself, two youngsters.  As the defendant appeared to be nervous, the police conducted a search on him and found in his shoulder bag a total of five plastic bags containing what was subsequently found to be 9.63 grammes of a crystalline solid containing 9.49 grammes of methamphetamine hydrochloride, commonly known as “ice”.  The defendant was arrested for the offence of possession of a dangerous drug; under caution, he said the two youngsters had taken the five packets of “ice” to the unit to be consumed there. 

4.The police investigated into one of the two youngsters, namely Luk Wing-yin (“Luk”), who was then 17 years old.  Under caution, he told the police that the defendant had taken the five packets of dangerous drugs to the premises, and that Luk himself had consumed some dangerous drugs there out of curiosity.  The defendant was further arrested for trafficking in a dangerous drug; upon reminded caution, he said he had consumed “ice” for fun and that he had thrown the “ice” flask onto the street. 

5.In a subsequent cautioned interview, the defendant admitted that it was he who had taken the “ice” to the unit, “ice” that he had purchased, for his own use, at $2,400 in Mongkok.  The defendant told the police that he had asked Luk to come up to his place, saying he had taken some “ice” to the unit, and that after his arrival in the unit, Luk consumed “ice” there, using the “ice” flask.

6.Luk provided the police with the following information.  On the day in question, the defendant asked him to go to the unit to assist him to change house.  When Luk and his friend arrived, Luk saw the defendant consume “ice”.  The defendant asked Luk and his friend if they would like to try.  At the defendant’s invitation, Luk and his friend consumed “ice” in the unit.

7.The police found three fingerprint impressions on the sticky side of the adhesive tapes of two of the five packets of “ice” concerned.  The fingerprint impressions matched those of the defendant’s.  The street value of the “ice” seized by the police in this case was $4,102.

8.Subsequent to his arrest, the defendant was granted police bail pending the conclusion of their enquiry.  On 8 January 2015, he failed to answer bail at Tin Shui Wai Police Station.  It transpired, according to police investigation, that he had departed from Hong Kong to the mainland via the immigration control point at Lok Ma Chau.  The defendant did not return to Hong Kong until 23 November 2015, whereupon he was re-arrested.

9.Arising out of the incident in the unit, Luk was charged to appear before a magistrate to answer a charge of inhaling a dangerous drug.  He was convicted as charged on his own plea and was, on 14 April 2015, sentenced to probation for 18 months.

10.The prosecution have by their letter dated 7 January 2016 given notice of their intention to make an application for enhancement of sentence pursuant to section 56A(1) of the Ordinance, on the basis that the offence committed by the defendant is a specified offence[3] and that it involves “the procuring, supplying or trafficking by whatever means of a dangerous drug for or to a minor for possession or otherwise by a person”[4] and “a person intentionally or unintentionally employing, hiring, using, persuading, enticing or coercing a minor in the commission of a specified offence.”[5]  Pursuant to the Ordinance, specified offences include, among others, the offences of trafficking in a dangerous drug[6] and of inhaling a dangerous drug[7]. 

11.The defence raises no objection to the prosecution’s application for enhancement under section 56A(1) of the Ordinance.

MITIGATION

12.The defendant was born in Hong Kong in October 1981 and is now 35 years old.  He has received education up to Form One level and has worked as a transportation worker.  He has been unemployed since 2014 and has been living on Comprehensive Social Security Allowance.  He is single but has two daughters aged nine and ten.  He lives with his mother and his two daughters.  He has six criminal conviction records involving six charges, none of which are similar to the subject offence.  His criminal records show that he has been sentenced to detention at a drug addiction treatment centre on two occasions.

13.In her plea in mitigation, Miss Anita Ma appearing for the defendant stresses, first of all, that at the time of the offence committed by the defendant, Luk was only two months short of his eighteenth birthday.  While not disputing the court’s jurisdiction to enhance the sentence under section 56A(1) of the Ordinance, it is Miss Ma’s submission that Luk’s status as a minor at that time might not have been obvious to the defendant. 

14.By way of further background information, Miss Ma submits that the defendant has come from an exceedingly humble family, his mother having been repeatedly abandoned by the biological fathers of her children among whom the defendant is the eldest.  The defendant’s mother, who is now 49 years old, suffers from poor health and is in need of regular medical attention.  The defendant himself has two daughters, one of whom is retarded and is studying in a special school, while the other is normal.  The defendant has started to take dangerous drugs in around the year 2000 and has since then been sent to the DATC twice.  The treatment provided by the centre did not, says Miss Ma, appear to be effective in the defendant’s case; the defendant ended up heavily addicted to dangerous drugs.  Since 2008, the defendant has been using the social security payment to purchase “ice” for his own use.

15.As to the circumstances of the commission of the subject offence, Miss Ma submits that the defendant invited Luk to help to restore the unit to a state fit for delivery to the Housing Authority.  Knowing that Luk himself took “ice”, the defendant shared the “ice” with him and has derived no monetary gains from Luk.

16.Miss Ma refers the court to the following three cases concerning enhancement of sentence under section 56A(1) of the Ordinance: HKSAR v Wong Kwok-hung[8], HKSAR v Chan Ka Shing[9], and  HKSAR v Ng Hon Keung[10]. Several mitigation letters are also handed up to the court.  In summary, Miss Ma submits that the defendant has come from a very humble family and is a simple-minded person; she asks the court to pass a lenient sentence on him.   

CONSIDERATION

17.Arising from the fingerprint evidence, it is clear that the defendant must have packed the “ice” himself.  The court finds beyond all reasonable doubt, in all the circumstances of the case, that in addition to the social trafficking he has committed involving Luk, the defendant must have intended to supply the five packets of “ice” to others for gains.

18.Two issues are raised in this sentencing hearing.  First, Miss Ma argues that the defendant has had the intention to consume the “ice” himself, for which he should be given a reduction in sentence.  Secondly, the court has to assess the extent by which the sentence should be enhanced under section 56A(1) of the Ordinance, in light of all the circumstances of the case.    

19.The Court of Appeal in HKSAR v Chow Chun Sang[11] dealt with the issue of partial consumption being relied upon as a ground of mitigation, and held:

“19. We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant. We need to emphasize that unless the judge has erred in principle, the appellate court should not interfere with a discount to sentence given by the judge on account of self-consumption of part of the drugs a defendant trafficked in.” (emphasis supplied)

20.In arriving at that conclusion, the Court of Appeal made reference to two cases, namely HKSAR v Chow Kam Lung[12] and HKSAR v Cheuk Kin Man[13].  In the former case, the defendant imported dangerous drugs from the mainland wholly for his own use, and he was granted a 25% reduction in sentence; in the latter case, the defendant had intended to consume two-third of the dangerous drugs concerned and was given a 15% reduction.[14]  In all the circumstances of this case, the court is of the view the defendant has had the five packets of “ice” for the purposes of trafficking.  Having regard to the defendant’s criminal history, the court cannot rule out, however, the possibility that he might consume a small portion of the “ice”.  The court finds that a reduction in sentence of slightly in excess of 10% ought to be given.

21.The principles relevant to a section 56A(1) enhancement of sentence are clear.  First, section 56A(1) does not stipulate the time limit within which the prosecution must inform the defence of their intention to make an application for such an enhancement.[15]  Secondly, proof of knowledge on the defendant’s part of the minor’s status as such is not required.[16] Thirdly, in imposing an enhanced sentence, the court has to consider the percentage as well as the actual extent of enhancement.[17]  Fourthly, the degree of enhancement is to be determined by reference to the factual circumstances of the case.[18]

22.It is noted, in the present case, that the defendant has supplied the minor with “ice” for self use, rather than for onward delivery to others.  The incident has led to Luk’s conviction of an offence of inhaling a dangerous drug for which he was sentenced to probation for 18 months.  In all the circumstances, the court is of the view that an enhancement of the defendant’s sentence by four months would be sufficient to meet the justice of the case.

23.The Court of Appeal has laid down the sentencing tariff for trafficking in zero to ten grammes of “ice”, namely three to seven years’ imprisonment (see AG v Ching Kwok-hung[19], HKSAR v Capitania[20], and HKSAR Tam Yi-chun (No.2) [21]). In the instant case, for the amount of narcotic concerned, the proper starting point should be six years and six months’ imprisonment.  The sentence is reduced, on account of the factor of partial consumption of the “ice” by the defendant himself, to one of five years and nine months’ imprisonment. 

24.The defendant is entitled to one-third discount for his guilty plea, resulting therefore in a sentence of three years and ten months’ imprisonment before enhancement.  Nothing in the defendant’s background would warrant any further reduction. 

25.It is ordered that the sentence be enhanced by four months under section 56A(1) of the Ordinance on the first limb, ie., under section 56A(2)(a), there being no solid evidence capable of supporting a finding of persuasion, enticement or coercion having been practiced on Luk by the defendant; the final sentence is one of four years and two months’ imprisonment.

CONCLUSION

26.For the offence of which he stands convicted, the defendant is sentenced to a period of imprisonment of four years and two months.