HKSAR v. Siu Kwok Chun

HCCC 413/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 413 OF 2015

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

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COURT:

Defendant, you have pleaded guilty to two charges before this court. The 1st charge is that of an occupier permitting premises to be used for the unlawful storage of dangerous drugs, contrary to section 37(1)(a) and (2) of the Dangerous Drugs Ordinance, Chapter 134, and the 2nd charge is one of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the same ordinance. Both charges were committed on the same date and at the same premises.

In respect of the permitting premises to be used for unlawful storage, the quantity of dangerous drugs was 121.64 grammes of a crystalline solid containing 118.38 grammes of methamphetamine hydrochloride, otherwise commonly known as ‘Ice’. In respect of the 2nd charge, you had possessed 3.24 grammes of a crystalline solid containing 3.16 grammes of methamphetamine hydrochloride.

Both offences were committed on 30 April 2015, at 193 Cha Kwo Ling Road, Kwun Tong. On the afternoon of 30 April, police officers raided the premises with a search warrant. Three other males and yourself were found in the flat. The flat consisted of four rooms and you were the occupier of one of the rooms. In the room occupied by yourself, the police officers found one bottle used for consuming ‘Ice’. The quantity of ‘Ice’ in Charge 2 was contained in a bag, stored in a locked drawer, opened with a key provided by yourself.

The remaining drugs, which were the amount as stated in Charge 1, were found in two separate containers. One container was a yellow metal box containing three electric scales and 92 empty resealable transparent plastic bags and two bags containing 22.54 grammes of a crystalline solid containing 21.98 grammes of ‘Ice’. The other container was a tea can containing five bags containing 99.1 grammes of crystalline solid containing 96.4 grammes of ‘Ice’.

For the packet of ‘Ice’ found in your locked drawer, it was for your self-consumption. The reminder of the drugs belonged to a man as stated in the brief facts called Chow Cheuk-ban. You had permitted him to store the drugs in Charge 1 and contained in the yellow box and tea can in your room. On the date of your arrest, those drugs had been left there for approximately a week, and you had believed that Mr Chow would be back to collect those drugs in about 10 days’ time.

The street value of the drugs was approximately $53,324.

Mr Dick Lee has mitigated on your behalf and he has urged me to impose a lenient sentence as is permissible and upon activation of the suspended sentence which you are now currently under, to have that term run concurrent to your term of imprisonment in this case.

Defendant, you are now 65 years of age and married with two children, a son and a daughter. Your son is approximately 40 years old and your daughter, who is in court, I assume is roughly about a similar age. Prior to commission of this offence, you worked as a renovation worker earning approximately $20,000 a month. You worked principally in the vicinity of Cha Kwo Ling.

The present room, Mr Lee has informed me, was originally for the purposes, rented by you, to store your tools and to place them there for your renovation works. In fact, you lived a short three-minute distance away at 195A Cha Kwo Ling Road with your wife and daughter. In support of your residential address, Mr Lee has submitted to me an electricity bill with your name and address on it.

It is admitted that you have 11 previous convictions. Three of them are drug-related. In 1996, you had a similar conviction for possession of dangerous drugs. The drug-related offences were, however, committed more than 20 years ago.

At the time of commission of this offence, you were under a suspended sentence for an offence of fraud. Mr Lee informs me that this fraud was committed in respect of a disability allowance which you received. You had failed to declare to the Social Welfare Department that you had purchased a car and thus committed a fraud on the department and you were given a 6 months’ term of imprisonment, suspended for 2 years, and ordered to pay compensation of $78,882.

In respect of that suspended sentence, Mr Lee has asked me not to have that 6 months’ sentence served consecutive to the term you receive in this court. He has referred me to two cases which are the case of John Alan Christie & Othersdated February 27, 1979 before the Court of Appeal in England, and a similar Court of Appeal case in England of Arthur Smith & Others dated June 25, 1981.

The principles set out in these cases was that where long sentences are passed, the sentencer must have regard to the total sentence - that is the judge - he is imposing, and no useful propose is served by increasing those sentences to a small degree by activating a suspended sentence, for example. The short sentences which were activated should be served concurrently and not consecutively. The sentences imposed in those cases were terms of 12 years’ imprisonment and 11 years respectively. Mr Lee was unable to refer to any Hong Kong or local authority case in mentioning these two cases.

In any event, in respect of the present case, the sentence this court is going to impose can be distinguished in that the sentence that will be imposed is not a long one and will not be a long sentence as that reflected in those two cases. This court still looks at the totality of the sentence imposed and in this case, I do, however, consider that in activating the suspended sentence, the terms should run consecutively.

Turning to the offence of permitting the premises to be used for the unlawful storage of dangerous drugs, Mr Lee has said that the defendant began to use these premises for the consumption of drugs. He used these premises rather than his residential premises so as to take drugs away from his matrimonial home which he shared with his wife and daughter. Having occupied these premises for inhaling the dangerous drug ‘Ice’, he permitted Mr Chow to store the drugs there for about two weeks. He was ordered not to touch the box or the metal can. Mr Lee said that the defendant underestimated the legal consequences of his permitting Mr Chow to store the drugs at his premises.

I have been referred to the case of HKSAR v Ho Wing To [2011] 4 HKLRD 465 and also the cases of HCCC 110/2013 and HCCC 152/2013. The present offence of occupier permitting premises to be used for unlawful storage of dangerous drugs carries a maximum sentence of 15 years’ imprisonment upon conviction on indictment. As affirmed in Ho Wing To and pointed out by the Court of Appeal in Lee Kwok Keung [1997] HKLR 346, the offence is one which varies greatly in its gravity and it is not an offence for which this court could ever lay down any useful guidelines. However, the extent of knowledge and involvement of an accused person together with the amount of financial benefit, if any, are important considerations.

In this case, the defendant knew that Mr Chow was going to leave the drugs there for approximately two weeks. There is no evidence of any financial or other benefit. As mentioned, the defendant had used these premises for inhaling dangerous drugs. There were other occupiers of the flat and it was not only the defendant. In fact, the three men found in the flat with him were also occupiers.

I have taken note of the sentences passed in the cases of Lam Lai Chu and Lee Kwok Keung and Cheung Yiu Fai as mentioned in the case of Ho Wing To and also the case of Chau Hoi Wing which Mr Lee has submitted.

The amount of drugs left for the unlawful storage was 118.38 grammes of methamphetamine hydrochloride. If the defendant had been convicted of trafficking in a dangerous drug, the starting point after trial would be one of about 11 years and 9 months’ imprisonment and after a one-third discount from that term, would be one of 7 years and 10 months’ imprisonment.

There is nothing aggravating in this case, save and except the simple fact that the defendant here permitted Mr Chow to store the drugs at a place which he occupied for inhaling drugs.

In the circumstances, had you been convicted after trial, Defendant, for the present offence, I would have taken a starting point of 6½ years’ imprisonment. Giving you full credit for your plea of guilty, I reduce that term by one-third, and on that charge, you shall be sentenced to 4 years and 4 months’ imprisonment.

For the 2nd charge, possession of dangerous drugs, had you been convicted after trial, I would have taken a starting point of 18 months’ imprisonment. Giving you full credit for your plea of guilty, in reducing that term by one-third, you shall be sentenced to 12 months’ imprisonment.

The term in Charge 2 shall run concurrent to that in Charge 1.

As mentioned, you committed the present offences during the period of suspension in case number KT 6594/2013. The term there of 6 months shall be activated and shall be served consecutive to Charge 1, which makes the term that you shall serve 4 years and 10 months’ imprisonment.