HKSAR v. Kong Tat Cheong, Victor

HCCC 360/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 360 OF 2015

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REASONS FOR SENTENCE
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1.The defendant has pleaded guilty to a single count of trafficking in a dangerous drug, namely 23.61 g of a crystalline solid containing 23.36 g of methamphetamine hydrochloride, commonly known as Ice.

2.The defendant was found to be in possession of the drugs specified in the count on 1 May 2015.  He claimed at the time that he bought the drugs to feed his drug habit.  He has consistently maintained that the drugs were for his self consumption.

3.On 4 September 2015, in the Eastern Magistrate’s Court the defendant indicated he would plead not guilty to the trafficking offence and he was therefore committed to the Court of First Instance for trial.  His case was originally listed for trial on 7 December 2015 but was adjourned and relisted for trial on 5 December 2016.

4.On 2 December 2016, Ms Catherine Wong, counsel for the defendant advised that the defendant would plead guilty to the count on the indictment which was fixed to take place today.  There had been two pre-trial reviews on 29 August and 11 October 2016 where trial dates had been arranged and matters discussed for the trial.  Ms Wong explained that her client’s position was that the drugs were for his self consumption and that he was also suffering with leukaemia.

5.The facts giving rise to the defendant’s plea of guilty can be briefly stated as follows.  At around 6 pm on 1 May 2015, police officers were conducting an anti-crime patrol at Tai Kok Tsui Road, Mongkok. They noticed the defendant and another male behaving suspiciously as they were leaving a building at 67 Tai Kok Tsui Road.  The police officers intercepted the two men and the defendant was asked to open his sling bag.  As he was opening his bag, he suddenly took out a white plastic bag and threw it on to the ground and ran away.  He ran a short distance before falling to the ground outside 47 Tai Kok Tsui Road.  He was subdued by one of the police officers who searched his bag and found a mobile phone charger box containing two transparent resealable plastic bags which was later confirmed to contain 9.65 g of a crystalline solid containing 9.5 g of Ice; one electronic scale; and 10 transparent resealable plastic bags.  Also found in the bag was one resealable plastic bag containing 0.66 g of a crystalline solid containing 0.66 g of Ice and an Ice bottle, a device used to consume the drug.  The white plastic bag that the defendant had discarded was later confirmed to contain 13.3 g of a crystalline solid containing 13.2 g of Ice.  The total weight of the drugs was 23.61 g of a crystalline solid containing 23.36 g of Ice.  The retail value of the drugs at the time of the offence was estimated to be $9,302.

6.The police officer arrested and cautioned the defendant first for possession of the dangerous drugs and later for possession of apparatus fit for the smoking of a dangerous drug.  On each occasion he replied: “That’s right, those dangerous drugs are for my own consumption.”  The defendant later signed post recorded statements to that effect.

7.He later participated in a video recorded interview where he explained that he consumed Ice 3 to 4 times every day; that each consumption of drugs cost $200 and he would spend up to $600 to $800 a day; that he would purchase Ice once every one or two weeks which would amount to 10 to 20 g of Ice each time; that he was a casual worker in transportation and building earning around $10,000 a month; that he would also receive financial assistance of between $500 to $1,000 when he needed it from his family members, mainly from his mother; that he was also a CSSA recipient collecting $5,800 per month; and that the electronic scale was for him to measure the quantity of Ice he consumed which he would packet in the resealable plastic bags.  He also explained that he had to monitor his consumption because he had cancer. 

8.As part of the agreed facts, the defendant admits the trafficking offence but on the basis that some of the drugs were for his own consumption.  Ms Wong on behalf of the defendant submits that a one-third proportion of the drugs were for his self consumption.  She refers to a medical report dated 5 December 2014 where it is recorded that the defendant is an active abuser of Ice, taking it once every 2 to 3 months for 2 years and to the expert statement that a single consumption of Ice would consist of 0.3 g.  Given the total quantity of drugs involved in this case this would consist of a little under 80 single consumptions.  The evidence also before me is that he would purchase drugs every one or two weeks but he claimed that he would consume Ice 3 or 4 times a day.  I am not prepared to accept that his consumption was that often on a daily basis bearing in mind what is recorded in the medical report that he would consume Ice 2 or 3 times a month. 

9.Mr Edward Laskey, for the prosecution, notes that the evidence of the defendant’s self consumption comes from him only and the Court should bear in mind that initially in his caution statements he said all the drugs were for his own use.  Mr Laskey also refers to a urine test that was performed on the defendant that proved negative to any drugs but it was some days after his arrest and therefore does not assist me either way. 

10.It is not without significance that at the time of his arrest he had an Ice bottle in his bag which is a device used to consume Ice.  It would also seem highly likely that in light of his drug addiction and medical condition he would have set aside some of the drugs for his own consumption.  I will accept the defendant’s claim that a proportion of the drugs in which he unlawfully trafficked was for self consumption but I do not accept, for the foregoing reasons, that it was high as one-third.

11.Ms Wong has also urged me to sentence the defendant as leniently as possible given his personal background and the circumstances of the offence.  The defendant is 34 years of age.  He left school and moved out of home at an early age.  He has clearly had a troublesome youth and that is reflected by the number of prior convictions for offences involving violence, sexual violence, dishonesty and drugs from 1999 onwards. He was married in 2012 but his wife left him two years later in 2014 having given birth to two daughters.  Also in 2014 he was diagnosed as suffering with leukaemia.  He has been receiving chemotherapy and it would appear because of his medical condition he has also sought refuge in consuming Ice. 

12.Ms Wong questioned in mitigation that because of his medical condition he would not receive appropriate treatment in the prison system.  There is nothing to support this suggestion.  He has been receiving treatment whilst in custody and medical facilities are readily available to prisoners who also have access where necessary to outside medical facilities.

13.According to the tariff case for trafficking in Ice, HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, a starting point of 7 years and 10 months’ imprisonment should be imposed for a quantity of 23.36 g of Ice.  I accept that some of the drugs were to be used by him whilst the rest was to be trafficked by him in order to pay for his habit.  Recently, in HKSAR v LIU Ming-sze, CACC 103/2016, 11 November 2016, unreported, the Court of Appeal addressed the issue of a discount of sentence to reflect the fact of self consumption of a proportion of drugs in which the defendant trafficked unlawfully.  I will reduce the starting point for the factor of self consumption to 6 years and 9 months’ imprisonment.  I will further reduce the sentence by one-third for the defendant’s guilty plea to 4 years and 6 months’ imprisonment.  I have borne in mind the personal circumstances and medical condition of the defendant but on his own admission a significant proportion of the Ice was for trafficking. 

Mr Edward F. Le B. Laskey, counsel on fiat, for HKSARMs Catherine Wong, instructed by Ho Tse Wai & Partners, assigned by Director of Legal Aid, for the defendant