HKSAR v. Kwok Ching Keung

DCCC 491/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 491 OF 2016

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Reasons for Sentence

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Charges and facts

1.The Defendant pleads guilty to 3 charges as follows:

(1) Trafficking in a dangerous drug (1^st Charge);

(2) Possession of apparatus fit and intended for inhalation of a dangerous drug (2^nd Charge);

(3) Failing to surrender to lawful custody (3^rd Charge).

2.At near midnight on 20/1/2016, the police searched the Defendant’s residence situated in a room in Mong Kok with a search warrant.  A bundle of keys fit for the premises was seized from him.  Inside the toilet, the following items were found:

(1) 1 plastic bag of drugs containing 3.53 grammes of a solid containing 3.42 grammes of methamphetamine hydrochloride (“Ice”);

(2) 1 electronic scale;

(3) 1 lighter;

(4) 153 empty transparent re-sealable plastic bags;

(5) 1 plastic bottle containing 26 millilitres of a liquid containing traces of cocaine;

(6) 1 plastic bottle containing 18 millilitres of a liquid containing traces of cocaine;

(7) 1 plastic bottle with 1 plastic straw inserted.

3.Items (1) – (4) are relevant to the 1^st Charge.  Items (5) – (7) are relevant to the 2^nd Charge. 

4.In his subsequent cautioned interviews, he stated that he was a cleaner with a monthly salary of $6,000, and he had lived there alone for 1 year at a monthly rent of $10,000. 

5.The estimated street value of the drugs seized was $1,083.71.

6.He was given court bail to attend the District Court on 28/6/2016 but he failed to attend court.  He was arrested on 16/3/2017. 

Personal background and mitigation

7.He is 42 years of age, living apart from his parents.  He last worked as a cleaner with a monthly salary of $6,000.  He had a mix of criminal records, though predominantly for simple possession of drugs.  He had only one trafficking record, which got him 28 months; he was released in 10/2011. 

8.His latest conviction was for simple possession of drugs committed on 16/3/2017.  It involved 0.4 gramme of cocaine.  He got 18 weeks in 8/2017 (KC/882/17).  Mr. Leung has asked me to consider a partial overlapping sentence for possibly having (though the Defendant did not actually have) his latest case sentenced together with the present one.  However, Mr. Leung accepts, quite fairly in my view, that the latest offence was committed whilst he was jumping bail for the present one. Besides, he was arrested for that offence, not that he surrendered himself for the present one.  These conflicting aspects in sentencing may well counterbalance each other.  I agree with Mr. Leung for his observations. 

9.He had 5 instances of failing to answer police or court bail, as the case may be, from 2000 to the present one in 2017.  The last but one was in 2008.  Mr. Leung submits that there was a gap of 8 years from that to the present one and asks me not to aggravate his sentence because of his previous instances.  I agree that Mr. Leung has a point here. 

10.In mitigation, his solicitor Mr. Leung submits on the Defendant’s instructions that most of the drug seized was for self-use, possibly reflected by his decades of involvement with dangerous drugs as seen in his convictions and DATC orders.  I refer to his video-recorded interview to the effect that his monthly salary as a cleaner was $6,000 whereas his monthly rental was $10,000.  On the face of this financial situation, his allegation of self-use is implausible.  I invoke the necessity for a Newton hearing to determine this allegation of self-use.  After taking further instructions from the Defendant, Mr. Leung informs me that the Defendant does not intend to have a Newton hearing and only relies on oral submission by Mr. Leung for what it is worth.  At the end of the day, I reject this allegation of self-use. 

11.There is a letter by John Wotherspoon, chaplain at LCKRC, which narrates how the Defendant, together with 2 other inmates, had saved a CSD guard (Officer No. 6541) who lost consciousness in their dayroom.  They had given him first aid and called for emergency help.  Mr. Leung informs me that the guard is still on sick leave. 

Sentencing guidelines

12.The Court of Appeal has stated that trafficking of up to 10 g of Ice shall warrant 3 – 7 years' imprisonment as the starting point (AG v Ching Kwok-hung [1991] 2 HKLR 125, HKSAR v Capitania [2004] HKCU 926).

Sentencing this Defendant

13.I take a starting point of 3 years 6 months for the 1^st Charge.  There is a one-third discount for his timely plea of guilty.  I am prepared to give him 1 month off for his having saved the life of the CSD guard.  The sentence is 2 years 3 months. 

14.I take a starting point of 6 months for the 2^nd Charge.  There is a one-third discount for his timely plea of guilty.  The sentence is 4 months.

15.I take a starting point of 6 months for the 3^rd Charge.  There is a one-third discount for his timely plea of guilty.  The sentence is 4 months.

16.Based on the totality principle, I make the following order:

(1) 2 years 3 months for the 1^st Charge;

(2) The sentence for the 2^nd Charge shall be concurrent with other charges;

(3) 2 months for the 3^rd Charge shall be consecutive to the 1^st Charge.

17.The total sentence is 2 years 5 months. 

18.In respect of KC/882/17, on the one hand I would have ordered 1 month of the present sentence to be concurrent with it if it had been sentenced with the present one, but on the other hand, I would have added 1 month to the present sentence for his committing KC/882/17 whilst on bail for the present one. These are notional calculations only.  Eventually I make no order.  That means the present sentence shall be independent of KC/882/17.