HKSAR v. Lee Chak Kin

HCCC 35/2018

[2018] HKCFI 1242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 35 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant had pleaded guilty in the Magistrates’ Court to one count of trafficking in a dangerous drug, namely 111.7 grammes of a mixture containing 77.6 grammes of heroin hydrochloride, and one count of possession of dangerous drugs, namely 4.96 grammes of a mixture containing 3.39 grammes of heroin hydrochloride, 0.55 grammes of a crystalline solid containing 0.55 grammes of methamphetamine hydrochloride, 7 millilitres of a liquid containing traces of methamphetamine, and 13 millilitres of a liquid containing traces of cocaine and methamphetamine.

The facts again is nothing unusual.

The defendant was stopped at the Lo Wu Control Point and found to have the dangerous drugs, which is the subject matter of Charge 1, wrapped around his left thigh, and the defendant, under caution, said he had bought these drugs from a village in the Mainland for around $10,000 from an unknown person for his own consumption.

The defendant was subsequently taken to his place of residence and Customs officers opened his door and gate using a password provided by the defendant and keys found on him and, upon being asked whether there was any heroin in the flat, the defendant told the officers that there was heroin placed outside the toilet, and officers found a small packet which contained 0.03 grammes of a mixture containing heroin hydrochloride and, upon caution, the defendant said it was left over from his own consumption.

And also, upon a search of the premises, were found the rest of the dangerous drugs which is subject matter of Charge 2 and two inhaling devices were also found, amongst other things.

The total weight of the drugs that is the heroin hydrochloride found, it has an estimated retail value of HK$99,860.

The movement records of the defendant show that he left Hong Kong on the date of the offence at around 1.58 am and returned to Hong Kong via the Lo Wu terminal at around 1.44 pm when he was arrested.

The defendant is aged 62 and has an extremely poor record of 23 previous convictions, within which were 32 charges, eight for possession of dangerous drugs and one for trafficking in dangerous drugs. This trafficking offence was committed in 2004, when he was sentenced to 5 years’ imprisonment.

Mr Woon, in mitigation, really has said everything he can possibly say in relation to the defendant and also submitted that the defendant says that, of the drugs which in subject matter of Charge 1, of the four bags of heroin, the defendant claims that one bag was for his own consumption, which would be his reward for carrying the drugs across the border.

I told Mr Woon that he is welcome to call evidence in relation to that, because I am not prepared to accept that 25 per cent of the drugs in the Charge 1 was for the defendant’s own consumption and Mr Woon declined the offer.

However, I do accept that the defendant may have had some benefit from carrying the drugs over, but it would be nowhere near 25 per cent.

Now, according to The Queen v. Lau Tak Ming[1990]2 HKLR 370, which I am sure the defendant is well aware of, the Court of Appeal has laid down guidelines for sentencing in heroin hydrochloride by suggesting that, for trafficking in between 50 to 200 grammes, it would merit a starting point sentence of 8 to 12 years.

In this case, in relation to Charge 1, the total amount of heroin is 77.6 grammes, which would merit a sentence of between 8½ to 9 years.

I would have adopted 9 years as a starting point, taking into account the extremely poor record of the defendant, but because, as I have said, I do recognise that the defendant may be awarded some benefit for carrying the drugs over, I will take a lower starting point of 8½ years.

I will also have to take into account the enhancement for cross-border trafficking, so I will increase the 8½ years by 6 months to 9 years and, as the defendant had pleaded guilty at the earliest opportunity, he is entitled to one-third off, so I will then sentence him to 6 years’ imprisonment on Count 1.

And then, as for Count 2, I would take 18 months as a starting point and reduce the starting point to 12 months.

Taking into account the facts in the matter, I will make the 12 months concurrent to the sentence in the first charge and therefore the defendant will go to prison for a total of 6 years.