HKSAR v. Lee Ka Kit

DCCC 196/2018

[2018] HKDC 1165

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 196 OF 2018

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REASONS FOR SENTENCE

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1.Defendant Lee Ka Kit pleaded guilty before me to Charge 1 of Possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134; and Charge 2 of Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.Particulars of Charge 1 are that he, on 1 December 2017, at Po Shing Game Centre, No 88 Kau Yuk Road, Yuen Long, New Territories, in Hong Kong, had in his possession a dangerous drug, namely 0.51 gramme of a crystalline solid containing 0.50 gramme of methamphetamine hydrochloride.

3.Particulars of Charge 2 are that he, on same date, at same place, unlawfully trafficked in a dangerous drug, namely 27.50 grammes of a mixture containing 18.30 grammes of heroin hydrochloride.

Admitted facts

4.The facts admitted by Mr Lee may be summarized as follows.

5.On 1 December 2017, at almost 10 pm, police officers conducting a licence check at Po Shing Game Centre of Kau Yuk Road, Yuen Long, noticed Mr Lee behaving furtively.  Under enquiry, Mr Chan claimed to have lost his HKID card and appeared to be nervous.

6.When being escorted to the police van, Mr Lee appeared to be stiff in his left arm.  He was then searched and the following items were found:-

(a) Under his left armpit, one transparent resealable plastic bag containing 27.50 grammes of a mixture containing 18.30 grammes of heroin hydrochloride; and

(b) Inside his right jean pocket, one transparent resealable plastic bag containing 0.51 gramme of a crystalline solid containing 0.50 gramme of methamphetamine hydrochloride (ICE).

7.Mr Lee also had one mobile phone and cash of $128.10 on him.

8.Mr Lee was arrested for possession of dangerous drugs and under caution he stated that the heroin and ICE were for his self-consumption.

9.During a cautioned interview conducted on 2 December 2017, Mr Lee stated that:-

(a) The heroin was bought from one “Chan Jai” in Yuen Long Jockey Club Clinic for $10,000 at around 6 pm on day of arrest;

(b) The ICE was also bought from “Chan Jai” that day for $100 for self-consumption; and

(c) He would consume about 2 grammes of heroin and $100 worth of ICE every day.

10.The estimated street values of the heroin and ICE found in this case were $22,165 and $230.50 respectively.

Criminal record

11.The agreed criminal record shows Mr Lee to have 17 previous convictions of which 4 were for trafficking in dangerous drugs entered in 2006 and 7 were for possession of dangerous drugs the last of the latter type was in July 2015.

Antecedents

12.The agreed antecedents statement shows Mr Lee to be aged 48 (47 at the time of the offences); that he received F5 education; that he was a transportation worker earning around $20,000 before arrest; that he was last discharged from DATC in February 2017.

13.Mr Lee claimed to have been a drug addict since he was 21 years old.  Mr Lee had separated from his wife since 2002 and has a daughter (20) and a son (18).

Mitigation

14.Ms Vivian Wong of counsel mitigated on behalf of Mr Lee.

15.The following is a summary of the mitigation submissions.

16.In 2002, Mr Lee had actually been divorced with his wife rather than just separated from her.  Daughter is studying in university and son is about to enter university.  Before arrest, Mr Lee was living with a friend.  He was a transportation worker earning a daily rate of $900; it was not a stable job. In fact, he had difficulty finding a job because of his education and background.

17.The reason for his commission of the present offences is drug.  On this occasion, he was promised a reward of $500 for being a courier of heroin.  He has not yet been paid.

18.His strongest mitigation is the pleas of guilty.

19.He is turning 50 and realizes that he is facing the longest term of imprisonment in life.  He has acquired the Christian faith while he was detained.  All of these factors have caused him to determine to stay away from drug.

20.The tariffs set down in R v Lau Tak Ming, CA 230/1989 (submitted), will mean that, mathematically, the starting point for Charge 2 of trafficking is 68 months’ imprisonment for trafficking in 18.30 grammes of heroin.

21.Ms Wong asked the court not to enhance the starting point on the basis of a bad dangerous drug-related record for the reason that only 4 previous convictions (all entered on the same occasion in 2006) were for trafficking.

22.Ms Wong confirmed that there is no claim of self-consumption for Charge 2 of trafficking.

23.On Charge 1 of possession, Ms Wong submits that due to the very small amount of ICE, and there being no latent risk of the drug getting into the hands of others, the court should not follow the Wan Sheung Sum/Mok Cho Dik approach of sentencing which relates more to cases of larger quantity of drug.

24.Lastly, Ms Wong submits that both offences took place at the same place and at the same time; and so she asks the court to bear in mind totality and to impose concurrent sentences for the two charges.

Sentence

25.I have considered the mitigation submissions made by Ms Vivian Wong.

26.For Charge 1 of possession, bearing in mind the 3-step approach as set out in HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405 but noting the small amount of ICE involved in this case viz 0.5 gramme, I shall adopt a starting point of 9 months’ imprisonment for Mr Lee’s possession of the drug.

27.For Charge 2 of trafficking, it is well known that trafficking in a dangerous drug is a serious offence for which a deterrent sentence is called for.

28.For trafficking in 10 to 50 grammes of heroin, the tariff sentence is between 5 and 8 years’ imprisonment: see R v Lau Tak Ming & Ors [1990] 2 HKLR 370.

29.For Mr Lee’s trafficking in 18.3 grammes of pure heroin, I shall adopt a starting point of 5 years 6 months’ imprisonment.

30.However, because of Mr Lee’s bad dangerous drug-related conviction record, on the basis of the principle enunciated in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, I enhance that starting point by 3 months to reach the final starting point of 5 years 9 month’s imprisonment.

31.Mr Lee has pleaded guilty in time.  I shall give him the full 1/3 discount in sentence in respect of both charges.  There are no other mitigating factors which would enable me to give Mr Lee any further discount.

32.The two offences were committed at the same time and in the same place. After considering the principle of totality, I shall make the two sentences run concurrently with one another.

[Mr Lee, please stand]

33.For Charge 1, Mr Lee will go to prison for 6 months.  For Charge 2, Mr Lee will go to prison for 46 months.  I order that these two sentences are to run concurrently with one another.