HKSAR v. Lo Kai Yin

DCCC 169/2018

[2019] HKDC 285

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 169 OF 2018

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REASONS FOR SENTENCE

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1.The defendant faced the following 4 Charges: Charge 1 for trafficking in dangerous drugs, Charge 2 for possession of offensive weapons[1], Charge 3 for trafficking in dangerous drugs and Charge 4 for possession of apparatus fit and intended for the inhalation of a dangerous drug.

2.He was convicted upon his pleas of guilty and admission to the summary of facts of Charges 1, 2 and 3.  Charge 4 was ordered to be kept on file, not to be proceeded with against the defendant without the leave of court.

Summary of facts

Charge 1: Trafficking in dangerous drugs

3.At around 10:35 p.m. on 3 August 2017, the defendant was intercepted by Police officer on Yick Yuen Road in Tuen Mun.  A search was conducted on the defendant and one transparent re-sealable plastic bag (“Bag A”) containing some crack cocaine was found from his right front trousers pocket.  Under caution, the defendant claimed the drugs to be for his self-consumption.

4.Forensic examination later confirmed that Bag A contained 6.38g of a solid containing 5.52g of cocaine.

Charge 2: Possession of offensive weapons

5.At around 10:58 p.m., police officers conducted a search of the defendant’s residence at Yick Yuen Tsuen upon execution of a search warrant.

6.A machete with a 30 cm long blade with holes, a kukri knife with a 25 cm long blade and 6 iron pipes wrapped with white cloths at the handle area (“the seized weapons”) were found at the adjoining metal hut on the ground floor.  Under caution, the defendant claimed that his brothers placed the items there.

Charge 3: Trafficking in dangerous drugs

7.From a room labelled “Health Room” on the first floor, one transparent re-sealable plastic bag containing another transparent re-sealable plastic bag containing crack cocaine (“Bag B”), and an electronic scale were found.

8.Government Chemist later confirmed Bag B contained 18.2g of a solid containing 15.6g of cocaine.

9.The defendant was arrested for trafficking in dangerous drugs.  Under caution, he claimed that the drugs were for his self-consumption.

10.The total quantity of cocaine seized is 24.58g of solid containing 21.12g of cocaine, with an estimated street price of $32,126.06 at the material time.

11.In the subsequent video recorded interview, the defendant claimed that he bought the cocaine in bags A and B from a friend for self-consumption.  He would use 5 to 6 grams of cocaine per day, at 1 gram per dose.  The electronic scale was for weighing the drugs he bought to make sure he was not cheated by the seller.

12.The seized weapons were left by his friend about one year ago.  He and his friend wrapped the iron pipes with white cloths.  They were intended to be used to resist attacks.

Previous convictions

13.The defendant has one conviction for burglary in 2008 when he was sentenced to the Detention Centre, and convictions for possession of dangerous drugs and possession of equipment fit and intended for smoking a dangerous drug in August 2013, when he was sentenced to detention at the Drug Addiction Treatment Centre.

Mitigation

14.The defendant is 31 years old, divorced.  He was educated up to form 5 level and was a transportation worker at the time of arrest.  He was living with his girlfriend at the premises in question.  His daughter, when the defendant is working, would stay with the defendant’s mother.  The defendant would contribute money for their upkeeping and living expenses.

15.It was put forward in mitigation that up to around 20% of the seized drugs were for the defendant’s self-consumption.

16.Based on the defendant’s previous drug related record and the contents of his video recorded interview, as well as the fact that the quantity of drugs found the defendant’s person in charge 1 supported what the defendant said in the video recorded interview about how some 7g of the drugs were for his self-consumption, I will accept that around 20% of the seized drugs were for the defendant’s self-consumption and that it can be regarded as a significant proportion under the circumstances.

Maximum sentence

17.The maximum sentence for trafficking in dangerous drugs is that of a fine of $5 million and imprisonment for life.

18.The maximum sentence for possession of offensive weapons contrary to section 17 of the Summary Offences Ordinance is that of a fine of $5,000 or to imprisonment for 2 years.

Sentencing tariffs

19.It was held in Attorney General v Pedro Nel Rojas [1994] 1 HKC 342 that the sentencing guidelines laid down in R v Lau Tak-ming [1990] 2 HKLR 370 for trafficking in the drug of heroine is applicable to cocaine as well.

20.The band of tariff for trafficking 10g to 50g of cocaine is that of 5 to 8 years’ imprisonment.

21.An arithmetical application of the said tariff sentence to the total of 21.12g of cocaine would lead to a starting point of 69 months’ imprisonment.  This is the starting point I adopt for charge 1 and 3.  The sentences are to be served wholly concurrently[2].

Self-consumption

22.It was submitted through counsel that up to 20% of the seized drugs were for the defendant’s self-consumption.

23.Mr Tang relies on the case of HKSAR v Tsoi Man-chun, CACC 414/2015 for the proposition that the defendant should be entitled to some discount based on some of the drugs being for his self-use.

24.In that case, the Court of Appeal reiterated that in order for a discount to be given on the basis of self-consumption, the amount involved must be “all or a significant proportion of the drugs”.  There was no specific finding as to the quantity of drugs earmarked for self-consumption in that case.  There was however circumstantial evidence to suggest that a large proportion was meant was self-consumption.  It was found that there should be a 10% discount on that basis.

25.In the present case, since I accept that up to around 20% of the drugs were for the defendant’s self-consumption, I will grant the defendant a discount in sentence of just slightly more than 10%.

26.The resulting sentence is (69-7=) 62 months’ imprisonment.  Upon granting him the full one-third discount, he is sentenced on charges 1 and 3 to a concurrent sentence of 41 months’ imprisonment.

Charge 2

27.In relation to charge 2, given the not insignificant number of weapons and the nature of the weapons, I find that an appropriate starting point is that of 12 months’ imprisonment.  This sentence is discounted to 8 months’ imprisonment for the defendant’s guilty plea.

Totality

28.The trafficking in dangerous drugs offences and the possession of offensive weapons offences are separate and distinct offences.  However, bearing in mind the principle of totality, I order that 6 months of the sentence in charge 2 be served consecutively to the sentences in charge 1 and 3, the balance concurrently.

29.The defendant is, therefore, sentenced to a total of 47 months’ imprisonment.