HKSAR v. Lui Tak Man

HCCC 406/2017

[2018] HKCFI 1206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 406 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 6 November 2017, Lui Tak-man pleaded guilty to a charge before a magistrate alleging that on 9 May 2017 at a public housing estate in Wong Tai Sin in Kowloon unlawfully trafficked in 20.5 grammes of a mixture containing 16.3 grammes of heroin hydrochloride and 12.6 grammes of a crystalline solid containing 12.2 grammes of methamphetamine hydrochloride. On pleading guilty to that charge and admitting a Summary of Facts in connection with the charge, the learned magistrate committed Mr Lui to the High Court for sentence. He is convicted on that charge.

On 9 May 2017, at about 11.33 am police officers who were on anti-narcotic duty at a public housing estate in Wong Tai Sin had their attention drawn to the accused who aroused their suspicions and caused them to make enquiries of him. In due course, a body search revealed that the accused was in possession of suspected dangerous drugs which turned out to be the drugs the subject of the charge to which he has pleaded guilty. Following arrest and caution, the accused admitted to officers at the scene that he was to receive $1,000 for delivering the drugs found upon him.

Following his arrest, the accused was taken to a room in a public housing estate nearby to the place of interception. In that room, the police gained access by keys supplied to them by the accused. They found a metal box containing 44 pieces of tissue and 151 wrapping sheets, a lighter, a pair of scissors, iron plate, an electronic scale with battery, and plastic spoon and a pair of pliers. The obvious inference from the findings of the police in the room to which they gained entry by the use of keys supplied by the accused is that what was found was consistent with aspects of packaging dangerous drugs for trafficking.

Following his arrest and caution and subsequent search of the premises where the paraphernalia was found, the accused agreed to participate in a video recorded interview. In the course of that interview under caution, he admitted that the premises which had been searched was his girlfriend’s home and he would stay there for two or three days a week. He also told police that he was unemployed and relied on the CSSA system for his living expenses. He also told police that he was a regular user of heroin.

He said that on the day of arrest he met a friend of his in the park nearby to the relevant housing estate and that his friend had asked him whether he wanted to earn quick money. He agreed and was given two bags of dangerous drugs. He said that at the time he placed them in his pocket he knew they were heroin and ‘Ice’. He was told to keep them and would be instructed later on as to the issue of delivery. For this service, he was promised a reward of $1,000.

He had said in the video record that the items found in the metal box in his girlfriend’s room had nothing to do with trafficking. In due course, I do not propose to take that into account against the accused for the purpose of sentencing, but it should be made clear I do not accept as true what he said in this regard.

It is agreed that the street value of the heroin seized from the accused had, at the time, a value of $14,800, and the ‘Ice’ had a value of $3,900.

The accused is a 57-year-old man. He was born in Hong Kong in 1960. He has limited education, having been educated to Primary 6. He is unemployed and dependent on payments from the CSSA system. He is addicted to both heroin and ‘Ice’.

He has a long history of criminal offences dating from 1984. The most recent of those was a conviction in 2014 for theft, for which he was sentenced to 10 days’ imprisonment. However, by far the greatest number of offences are offences either of possession of a dangerous drug or trafficking in dangerous drugs. In 1996, he was convicted of trafficking in dangerous drugs and received a concurrent sentence of 10 years’ imprisonment. He was also convicted of trafficking in dangerous drugs in 2006.

The community of Hong Kong has, for a very long time, taken a serious view of trafficking in dangerous drugs. That is reflected in the sentences imposed by the courts of Hong Kong for such offences. Both of the drugs for which the accused was carrying are addictive drugs. Both are well known to cause harm to the user of such drugs. If anyone knows this, in relation to both drugs, it is the accused himself. The cost is not limited to the user of the drugs and the trafficking and consumption of drugs such as heroin and ‘Ice’ also have an impact on our community. This occurs in a number of ways. An obvious cost to the community is the cost of treating the obvious health and addiction consequences of the drugs in question. Further, and this is particularly so with ‘Ice’, not only is it a savagely addictive drug and is a very difficult drug to rid oneself of the addition, but there is a clear history in general of users of the drug committing violent and other antisocial acts. What the accused was doing was participating in the distribution of those drugs to the obvious detriment of the community.

The courts of Hong Kong have developed guideline sentences for both of the drugs concerned. In relation to heroin, the guidelines were established by R v Lau Tak Ming [1990] 2 HKLR 370 where the Court of Appeal indicated that for quantities between 10 grammes and 50 grammes of narcotic, that a sentence of between 5 and 8 years was indicated. In relation to ‘Ice’, the guidelines were restated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The guideline suggested in that case was that for quantities between 10 grammes and 70 grammes, a sentence of between 7 and 11 years was indicated.

Where there is a requirement to sentence for two different drugs, the courts have identified different approaches depending on the circumstances. The different approaches were identified in HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Ko Ka Hing [2009] 4 HKLRD 826 and HKSAR v Chan Yuk Leong CACC 318/2013. The approaches identified in the authorities recognise that an approach where a sentence for each component of the collection of drugs in which the accused was trafficking might, if they were simply added together, produce a result which is unjust. This is, in the final result, a reflection of the basic principle of sentencing being an art and not a mathematical exercise, and that the art of sentencing is devoted to produce a just result given the circumstances of the defendant and the circumstances of the case.

The essence of the appropriate approach is that if the drugs were approximately similar then the approach known as the “combined approach” would be appropriate: see HKSAR v Ko Ka Hing [2009] 4 HKLRD 826. In that case, Cheung JA and Tong J said that there might necessarily have to be adjustments even if the combined approach is used to avoid absurdity. The concern to avoid absurdity and to do justice in the circumstances of the case was underlined by the decision of HKSAR v Chan Yuk Leong CACC 318/2013.

In the present case, it would be appropriate to employ the “combined approach”. Based on the sentencing guidelines identified earlier, the sentence which the accused would have received had this matter gone to trial in connection with the ‘Ice’ would have been about 7.2(7.5?) years. The sentence in respect of the heroin would have been about 5.5 years. Consecutive sentences on that premise would have produced a sentence of the order of almost 13 years. Applying the principles in HKSAR v Yip Wai Yin [2004] 3 HKC 367 and HKSAR v Chan Yuk Leong CACC 318/2013, this would produce an unjust result.

It is well recognised that ‘Ice’ is the more harmful of the two drugs and the appropriate approach would be to use ‘Ice’ as the baseline of the sentencing approach to this case. If one added the weight of narcotic value for the ‘Ice’ and the heroin together, the result is 28.5 grammes. If all of the drugs were ‘Ice’ that would attract a sentence after trial of about 8.5 years. The larger quantity in terms of narcotic content of the two drugs in question was heroin, 16.3 grammes as opposed to 12.2 grammes. Making an appropriate adjustment for all of those circumstances, the appropriate starting point is 7 years and 8 months. In arriving at this figure, I have eschewed the mathematical approach although the “ratio test” in HKSAR v Yau Ka Ming CACC144/2013 at paragraph 18 was a valuable crosscheck for arriving at the starting point that I have just articulated.

The accused has pleaded guilty at the first practicable opportunity. In doing so, he has taken responsibility for his conduct and expressed his remorse. He is a heroin and ‘Ice’ addict and he would clearly understand, if ever there was anyone, the ravages that that drug and the debilitating effect of those drugs in terms of addiction. At age 57, the said truth of the matter is that the prospects for this man are bleak. The court can only express the hope that perhaps finally the accused will grab the opportunity of treatment and rehabilitation while in prison so that when he emerges he does not have to face the ravages of his addiction. Whether that might improve his chances of employment is something that cannot be foretold. The sad truth of the matter is that the difficulty of getting work at age 60-plus - which his when this man is likely to emerge from prison - is an immense one for those who do not have any relevant skills and who have a long and unattractive criminal record. The courts recognise that a plea of guilty in these circumstances should result in a discount of one-third from the starting point that I have articulated.

Lui Tak-man, please stand up.

Doing the best that I can to combine justice and mercy, I reduce the sentence that you would have otherwise received after trial, that is 7 years and 8 months, by one-third and that means that you will go to prison for 5 years.