HKSAR v. He Fai Lau

DCCC 620/2018

[2019] HKDC 219

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 620 OF 2018

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Reasons for Sentence

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Charge and facts

1.The Defendant (“D”) pleads guilty to a charge of trafficking in dangerous drugs. 

2.On 2^nd May 2018, a manager of a hotel known as "The Bay Bridge" situated at No. 123 Castle Peak Road, Ting Kau, Tsuen Wan, New Territories, Hong Kong (“the Hotel”), saw two persons acting suspiciously outside Room 124 of the Hotel (“the Room”), and related the incident to another manager of the Hotel, who then reported this case to the police.

3.In the afternoon on the same day, a team of police officers arrived at the Hotel, and started to conduct surveillance inside.  At around 5:20 p.m. the police officers spotted a male (later known as D) and his female friend walking towards a private car near Parking Space No. 14, Level B2 of the carpark of the Hotel, and then intercepted them for enquiry.  Thereafter, D and his female friend were brought back to the Room.  Upon search of D, the following items were found inside the left front pocket of the shorts worn by him, inter alia:

(a) 1 plastic bag containing 1.67 grammes of a crystalline solid containing 1.51 gramines of methamphetamine hydrochloride or “Ice” (“E1”);

(b) 1 plastic bag containing 3.14 grammes of a crystalline solid containing 2.83 grammes of Ice (“E2”); and

(c) 3 plastic bags containing a total of 2.57 grammes of a solid containing 2.09 grammes of cocaine (“E3”).

4.Upon further search of him, $400 cash, a Samsung mobile phone with a total of two SIM cards, an iPhone with one SIM card, and a keycard to the Room were also found.

5.Upon search of the Room in his presence, an electronic scale (“E4”) and over a hundred of empty re-sealable plastic bags ("E5") were found on a round table in the Room.

6.After arrest and caution, he claimed that he bought all those dangerous drugs a few days ago in Mongkok for his self-consumption, and his female friend had nothing to do with the drugs.   His verbal cautioned statement at the scene was post-recorded in a police notebook with his acknowledgement.

7.In a further interview conducted on 3^rd May 2018, under caution he stated, inter alia, that:

a) On 29th April 2018, he bought the dangerous drugs seized from a person known as Siu-ming in a park in Mongkok:

b) Siu-ming sold him the "ice" for $3,000, the cocaine for $1,600, and gave D the electronic scale and plastic bags free of charge;

c) E1 – E3 were the dangerous drugs Siu-ming had sold to him;

d) E4 and E5 were the electronic scale and bags Siu-ming had given him respectively;

e) At around 8:00 p.m. on 30th April 2018, he and his female friend went to the Hotel;

f) Afterwards, he placed E4 and E5 on a table and E1 – E3 were in his left pocket: and

g) The dangerous drugs seized were for his self-consumption.

8.The street values of the methamphetamine hydrochloride seized, i.e. El and E2 and the cocaine seized, i.e. E3, are estimated to be around $3,338.14 and $2,981.20 respectively.

9.At all material times, D possessed E1 – E3 for the purpose of unlawful trafficking. 

Mitigation

10.He is 39 years of age. He was a construction worker before arrest.  He came to settle in Hong Kong from Mainland China in 1991.  He lived with his girlfriend.  He claims to be a cocaine and Ice addict, which fact was verified by urine tests conducted by CSD. 

11.He had a number of criminal records.  Among them were four for possession of dangerous drugs (with dates of sentence from 1998 to 2007).  Besides, there were two records for trafficking in dangerous drugs, for which he was sentenced to 7 years in December 2008 and 5 years 4 months in September 2014.    For the last-mentioned case, he was released from prison in February 2017. 

12.Mr. Yip asks me to consider his client’s claim that half of the drugs seized was for the purpose of self-consumption.  I regard such claim inconsistent with the particulars of charge and the summary of facts, each admitted by D and each referring to the entire quantity seized as the basis of the charge of trafficking.  Absent an application for reversal of plea so that such self-use quantity can be excluded from the facts, I cannot consider such claim of self-use.  After consulting with D, Mr. Yip informs me that D will not pursue such claim. 

Sentencing considerations

13.For trafficking in below 10 grammes of Ice, the sentencing guidelines suggest 3 – 7 years (HKSAR v Tam Yi-chun [2014] 3 HKLRD 691).  For trafficking in below 10 grammes of cocaine, 2 – 5 years is suggested (R v Lau Tak-ming [1990] 2 HKLR 370).  

14.In HKSAR v. Yip Wai Yin [2004] 3 HKC 367 the “Individual Approach” and the “Combined Approach” were analysed in sentencing traffickers of cocktail dangerous drugs.  The latter approach is to be adopted where one of the dangerous drugs involved was more harmful and plentiful than the others.  The sentencing judge shall fix a starting point for such drug and then adjust it upwards to take into account the impact of the other drug.   

15.The records show that he has been a recalcitrant trafficker.  A more deterrent sentence is warranted.    

Sentencing D

16.On the facts, I consider 4 years 6 months (or 54 months) as the starting point for the Ice, to be adjusted by 6 months for the impact of the cocaine.  I further increase that by 6 months for more deterrent effect due to his being a recalcitrant trafficker. The starting point is therefore 5 years 6 months (or 66 months).  After a one-third discount for his plea of guilty, the sentence is 3 years 8 months (or 44 months).