HKSAR v. Li Kam Hung

HCCC 212/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 212 OF 2016

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: I formally convict you, the defendant, Mr Li Kam-hung, of the two charges for which you are committed to this court for sentence, based on your own pleas of guilty and on the Summary of Facts that you have admitted. I now proceed to sentence you.

The defendant, Li Kam-hung, a 48-year-old man, pleaded guilty before a magistrate to two charges of trafficking in a dangerous drug, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The particulars of offence of the first charge are that on 26 August 2015, outside Flat 801, Metropole Building, Numbers 416 to 438 King’s Road, North Point in Hong Kong, you unlawfully trafficked in a dangerous drug, namely 2.61 grammes of a mixture containing 1.37 grammes of heroin hydrochloride.

The particulars of offence of the second charge are that on 26 August 2015, at Room 2, Flat 802, Metropole Building, the same Metropole building, you unlawfully trafficked in a dangerous drug, namely 74.17 grammes of a mixture containing 38.86 grammes of heroin hydrochloride.

He was committed to the Court of First Instance for sentence.

Before the magistrate, he also admitted the Summary of Facts prepared by the prosecution. The summary reads as follows:

1.  Around 12.05 pm on 26 August 2015, the defendant was intercepted by the police when he was seen acting furtively outside Flat 801, Metropole Building, Numbers 416 to 438, King’s Road, North Point.  Upon search, 20 packets containing a total of 2.61 grammes of a mixture containing 1.37 grammes of heroin hydrochloride were found inside his right trousers pocket.

2.  The defendant was arrested, and under caution, he stated:  “I was going to deliver the white powder to people after the packing was done.” 

3.  At the time of his arrest, the defendant had one mobile phone and cash of $1,000 on him. 

4.  The defendant further informed the police that he stayed at Room 2, Flat 802 of Metropole Building.  Using the keys found on him, access to the premises was gained.  A house search was conducted.  On the bed inside the premises, the following items were found:

(i)One plastic bag containing 6.47 grammes of a mixture containing 3.62 grammes of heroin hydrochloride.

(ii)One plastic bag containing 27.8 grammes of a mixture containing 13.9 grammes of heroin hydrochloride.

(iii)One plastic bag containing 27.9 grammes of a mixture containing 15.0 grammes of heroin hydrochloride.

5.  Further, on the table, inter alia, 89 plastic bags containing a total of 12.0 grammes of a mixture containing 6.33 grammes of heroin hydrochloride, three electronic scales, 47 empty transparent resealable plastic bags, two lighters, and two pairs of scissors were found.

6.  The total amount of dangerous drugs seized inside the premises was 74.17 grammes of a mixture containing 38.86 grammes of heroin hydrochloride. 

7.  The defendant was further arrested.  Under caution, he stated: “I was going to deliver the white powder to people only.” 

8.  A tenancy agreement and rental receipt for the premises, all with the defendant’s name on, were found inside the address. 

9.  In a subsequently held video-recorded interview, under caution, the defendant claim that he was delivering dangerous drugs to another person at the time of his arrest.  He received the white powder from an unknown person at Jordan MTR Station.  He repacked the drug and was going to deliver it to others.  He received $2,000 as a reward.  He claimed that he had already spent the money.  He denied the cash found on him was in any way connected to drug trafficking. 

10.  The defendant accepted that he used the paraphernalia found on the table, including scissors, resealable plastic bag and the lighters to repack the white powder.  He also used the electronic scale to weigh the drugs.  The mobile phone seized from him was for communicating with the person giving him the drug.

11.  The estimated street value of the dangerous drugs seized was $57,508. 

12.  The defendant now admits and accepts that he possessed the dangerous drugs seized both from his person and his residence for the purpose of trafficking.

The Court of Appeal in R v Lau Tak Ming And Others [1990] 2 HKLR 370 set down the sentencing guideline in trafficking in heroin. For trafficking up to 10 grammes, the appropriate sentence upon conviction after trial should be 2 to 5 years’ imprisonment, and for trafficking in 10 to 50 grammes of heroin, the sentence upon conviction after trial should be in the range of 5 to 8 years’ imprisonment.

It was also held in HKSAR v Siu Pui Ching [1997] HKCU 831, that is CACC 231/1997, decided on 5 December 1997 that where there were two offences, it would be appropriate to aggregate the total amount of drugs to determine the starting point for sentence.

Drug trafficking is a very serious offence. Sentencing is almost wholly dependent on established principles and guidelines. Save in rare circumstances, personal situation matters little, and very little discretion is left to the sentencer.

One thing I need to mention is that Mr Melwaney, counsel for the prosecution, has drawn my attention to the fact that the defendant has 27 criminal records, and 20 of them related to dangerous drugs, while eight of these twenty were for trafficking in dangerous drugs.

Mr Chiu, counsel for the defendant has urged upon me everything that can possibly be said in favour of the defendant. Mr Chiu has agreed to the antecedents of the defendant and his criminal records. He accepts that the defendant is a repeat offender. He explains that in regard to the last four items of his previous convictions, which are all trafficking in a dangerous drug, the defendant was convicted of three of these offences in 1999, and for which he was sent to jail. He was released in 2002.

The defendant had not committed any offence for a period of 12 years. In these 12 years, he was engaged in business on the mainland. But in 2012, his business was not doing well, so he got involved in trafficking in dangerous drugs again in 2012, and that was done for making money.

However, Mr Chiu pointed out that the present offence was committed not exactly for money. Upon his release in March 2015, that means last year, the defendant had no place to stay. His so-called family, that is, with his divorced wife and an adult son, were then living with a stepdaughter. The defendant was intending to join them, but he felt awkward to stay with them because of the stepdaughter. The defendant had a friend who could provide him with a place to stay. Mr Chiu explained there was no free lunch, and the defendant was required by the friend to pack drugs, and that was why the present offence.

Mr Chiu has also informed me that the defendant has reflected during his detention since the commission of the offence and his arrest, and the defendant wish to turn a new leaf. His wife has forgiven him and he wants to start a new life.

Considering the above sentencing authority and guideline and all the circumstances of this case, I take the total quantity of narcotic in both charges, namely 40.20 grammes of heroin hydrochloride, to determine the starting point, which should be in the region of 7 years and 3 months.

For the 1st charge, I adopt a starting point of 2 years’ imprisonment, while for the 2nd charge, the starting point I adopt is 7 years and 2 months. The defendant’s criminal records, with eight previous in drug trafficking, show that he has been a recidivist of this offence. These previous convictions and sentences had apparently not been able to deter him from committing the same offence, and this can be a basis for increasing the sentence for the purposes of further deterring him and protecting the public. See the case of HKSAR v Chan Pui Chi [1999] 2 HKLRD 830. I am, however, prepared to accept what Mr Chiu has urged me on his behalf, and not to enhance his sentence this time.

But I must warn the defendant that if he commits the same or similar offence in the future, he would almost certainly face an increase of the sentence which he would otherwise normally receive for that offence. That means I advise him to take into his heart that he is going to turn a new leaf. There is no mitigating factor except for the defendant’s own plea of guilty, for which I give the defendant a full one-third discount. The sentence for a first charge is therefore reduced from the starting point to 1 years 4 months’ imprisonment, whereas for the 2nd charge, the sentence is reduced from the starting point to 4 years and 9 months. I accordingly pass those sentences on the defendant.

I also order that 1 month for the 1st charge is to run consecutively to the sentence for the 2nd charge. The remaining 1 year and 3 months for the 1st charge is to run entirely concurrently with the sentence for the 2nd charge. All in all, the defendant is to go to jail for 4 years and 10 months.