HKSAR v. Lee Shing Po

HCCC 167/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 167 OF 2016

_______________

_______________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant has pleaded guilty to trafficking in a dangerous drug prior to trial. In the early hours on 18 September 2015, he was stopped by police officers in Tai Nam Street, Mongkok, Kowloon. The police observed him looking inside a light goods vehicle and behaving suspiciously. The police officers searched the defendant and found in his trouser pocket were five plastic bags consisting of a total of 101.96 g of a crystalline solid containing 98.8 g of methamphetamine hydrochloride, commonly known as Ice. He also had in his possession the sum of $8,288 cash.

2.After the defendant was arrested and cautioned, he stated that the drugs were for his own consumption.  He was later escorted to his home which was searched but no further illicit substances or evidence of consuming drugs were found there.  He was later interviewed, during which he maintained that the drugs in his possession were for his own consumption.  He claimed that he consumed between 2 and 3 g of the drugs 5 to 6 times a day.  He also claimed that he was employed as a transportation worker earning $9,000 a month and that the cash in his possession was his salary.

3.The street value of the drugs seized from the defendant at the time of the offence was $33,035.

4.It is admitted in the Summary of Facts that the narcotics found in the defendant’s possession were for the purpose of unlawful trafficking. 

5.The defendant is 45 years of age.  He was born in Hong Kong.  He received secondary school level education and after leaving school had various jobs, working more recently as a transportation worker.  He is a drug addict and consumes Ice.  He has an appalling criminal record that commenced when he was 17 years of age in relation to numerous offences for stealing, trafficking and possessing drugs.  He received two substantial terms of imprisonment for drug trafficking, one in September 1997 for 9 years and another in January 2005 for 6 years.  He has also received DATC orders, one in March 1995 and another in July 2010.  His last criminal conviction was for theft in June 2013 for which he was imprisoned for 8 months.

6.Mr Richard Donald, counsel for the defendant, put forward in mitigation that some of the drugs found in the defendant’s possession were for self-consumption.  In his written submission, he submitted that a significant proportion of the Ice was for self-consumption.  He cited HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and referred to paragraph 27 where the Court of Appeal noted that for regular users of Ice, the average daily consumption is in the range of 0.1 to 0.5 g.  He produced a medical report which revealed that the defendant was positive for Amphetamine when taken into custody in relation to this case.  On the basis that the defendant was an Ice addict and was consuming Ice two to three times a day as claimed by the defendant, he submitted that the defendant would be consuming about 1.5 g a day and on a weekly basis about 10 g.

7.I inquired of Mr Donald as to what exactly was the position of the defendant as to the amount of Ice for self-consumption.  It would appear that he had no instructions as to an actual quantity of Ice having been earmarked by the defendant for his own use.  The submission of self-consumption was primarily based on the premise that if the drugs were there the defendant would help himself even though it was acknowledged that he would traffic the drugs.  So on this basis, Mr Donald submitted that if the defendant held the drugs for a week he would most likely consume about 10 g of it which would represent 10 percent of the total quantity of drugs found in his possession in relation to this offence. 

8.Mr Martyn Richmond, counsel for the prosecution, argued that the prosecution did not accept that any of the drugs were for self-consumption.  He points to the fact that the defendant’s residence did not have any equipment for consuming Ice, which may indicate as suggested by Mr Donald that the defendant consumed Ice elsewhere.  More importantly, he points out that the defendant was arrested in the early hours of the morning in a public place and that the quantity of drugs had an extremely high purity.  He also noted that the value of the drugs represented an outlay of three times the defendant’s salary as claimed.  He submitted that in the circumstances of the case the whole of the drugs were for the purpose of trafficking. 

9.I have borne in mind the principles laid out in HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69 in deciding whether any of the drugs were for the defendant’s self-consumption.  I am satisfied that the defendant has had a history of drug addiction and was likely a user of Ice at the time of the offence.  I am not satisfied, however, that any or some of the drugs found in his possession were for self-consumption.  Given the circumstances in which the defendant was apprehended, in a public place in the early hours of the morning with the drugs packaged in 5 plastic bags tucked in his trouser pocket, that this was for the purpose of trafficking in the drugs in their entirety.  Whilst the defendant may have an addiction to Ice, it does not necessarily follow that these drugs would be used to satisfy his craving for them.  I have also taken into account that no consumption equipment was found at his home and it may be that he had access to consumption equipment and drugs elsewhere.  

10.I find that in the circumstances of this case, none of the drugs found in his possession were for self-consumption, and were instead for the purpose of trafficking in them.  I will therefore make no allowance for self-consumption. 

11.The guideline tariffs for trafficking in Ice, on conviction after trial, are contained in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  The guideline starting point for this quantity of drugs is 11 years and 6 months’ imprisonment.  This will be reduced by one third for the defendant’s guilty plea to 7 years and 8 months’ imprisonment.

Mr Martyn Richmond, counsel on fiat, for HKSAR

Mr Richard Donald, instructed by Cheung & Liu, assigned by Director of Legal Aid, for the defendant