HKSAR v. So Shui Kei

DCCC 1160/2018

[2019] HKDC 755

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1160 OF 2018

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of trafficking in dangerous drugs and one charge of possession of dangerous drugs.

Summary of facts

2.The defendant was stopped by Police officer at around 1854 hours on 8 October 2018 on Shung Tak Street in Tai Po.

3.Upon search, a mobile phone, cash of HK$1,900 and 5 keys were found on him.  The defendant was then brought to Room A of Flat A on the 4th floor of Tai Po Merchants Association Limited and N T Heung Yee Kuk Building on the same street (“Room A”).

4.With the defendant’s consent and with the use of the keys found on him, Police gained entry into Room A.

5.Inside a brown cupboard near the bed in Room A, the following items were found.

6.One black metal box containing 2 plastic bags with suspected dangerous drugs (E1 and E2), and one electronic scale with traces of suspected dangerous drugs (E3).

7.One brown metal box containing traces of ketamine and 3 plastic bags and 1 paper packet were found, all with suspected dangerous drugs inside (E4-7).

8.Two re-sealable plastic bags containing 72 re-sealable plastic bags.

9.A rental invoice for 13 November to 12 December in relation to a rented unit at the same building.

10.The defendant was arrested at around 1918 hours for trafficking in the said dangerous drugs.  The defendant said under caution that the ‘coke’, ‘ice’ and ‘K chai’ were all for his self-consumption and asked for a chance.

11.On the following day, Police officers visited Room 817 of Kui Wo House, Tai Wo Estate where the defendant claimed to reside with his family.  The rental agreement in relation to Room A with the defendant’s name as the tenant was found there.

12.In the subsequent video recorded interview, the defendant said he rented Room A for resting and taking dangerous drugs.  Only he had the keys to Room A.

13.The defendant claimed that the black metal box found in room A, and the ‘ice’ (E1 and E2, containing a total of 8.98 g of methamphetamine hydrochloride) found inside was purchased by him for his self-consumption.  He consumed 0.1 g of ‘ice’ a day and used the electronic scale (E3) to weigh the dangerous drugs.

14.The defendant claimed that the brown box was also his, that the ketamine inside (E4 and E7, being a total of 0.13 g of a powder containing ketamine) were also purchased by him for his own consumption.  He consumed 0.1 g to 0.2 g of ketamine a day and used the electronic scale (E3) to weigh the dangerous drugs.

15.The defendant also claimed that the cocaine (E5 and E6, containing a total 1.67 g of cocaine) found inside the brown metal box were bought by him for his own consumption.  He consumed 0.1 g of cocaine each time and 2 to 3 times a day.  He used the electronic scale (E3) to weigh the dangerous drugs.

16.As for the re-sealable plastic bags found inside Room A, the defendant claimed that they were used by him to prevent overdosing in dangerous drugs.

17.The defendant claimed in the video recorded interview that he was earning $1,000 a day as a casual construction site worker for about 20 days each month.  $4,000 of his income would go towards the payment of rental and utilities of Room A.  He would spend $2,000 to $3,000 each month on cocaine, ‘ice’ and ketamine.

18.The estimated street value of E1 and E2 is HK$4,332; of E4 and E7 is $62; and that of E5 and E6 is HK$3,279.

19.In the summary of facts that the defendant admitted to after pleading guilty, he admitted that he possessed E1, E2, E5 and E6 for unlawful trafficking (charge 1) at the material time.

20.He admitted that he was in unlawful possession of the dangerous drugs in E4 and E7 at the material time (charge 2).

Previous convictions

21.The defendant has one conviction for theft from vehicle when he was fined $1,000 in 1999.  His last conviction was in 2003 when he was fined $1,500 for possession of part I poison.

Mitigation

22.The defendant was born in mainland China in 1979 and is now 39.  He immigrated to Hong Kong with his parent in 1980 when he was 1.

23.The defendant is married.  He and his 33-year-old wife have a 10-year-old daughter and an 8-year-old son who are studying in the same school.

24.The defendant was educated up to Form 3 level.  He was working as a casual construction site worker 1 year before the present incident, earning on average $20,000 per month.  He was the sole financial support of the family and contributed $8,000 every month towards the family’s expenses during that time.

25.The defendant’s wife presented symptoms of psychosis after giving birth to their children and required continued psychiatric treatment and the defendant’s care.

26.Before the present case, the defendant’s wife was working as a salesperson, earning $10,000 per month.  After the defendant’s arrest, the wife has to take over the defendant’s responsibilities at home and was dismissed by her employer since she had to spend a lot more of her time looking after the family.  She is now a housewife.

27.Also since the defendant’s arrest, the family had lost their financial support and had to rely on public assistance of $18,000 per month.

28.The defendant’s parents are in their early 80s and both suffer from long term illnesses.  The defendant is the youngest in the family and is tasked with living with and looking after their parents.

29.The court was informed that the defendant is addicted to ‘ice’, as supported by the urine test dated 11 October 2018, showing the defendant tested positive for amphetamine.

30.According to Ms Wong, the defendant was taking dangerous drugs about 3 times a day, mainly ‘ice’ but sometimes would be cocaine or ketamine.  He was spending about $4,000 to $5,000 per month on dangerous drugs.

31.The defendant’s family and previous employer wrote in support of the defendant, informing the court that the defendant has been a responsible father and husband and employee.  The former employer is willing to re-employ the defendant after his release.

Sentence

32.The maximum sentence for trafficking in dangerous drugs on conviction upon indictment is that of a fine of $5 million and imprisonment for life.

33.The maximum sentence for possession of dangerous drugs is that of a fine of $1 million and imprisonment for 7 years.

34.The sentencing tariff for trafficking in methamphetamine, or ‘ice’, is found in the case of HKSAR v Tam Yi Chun[1].

35.For trafficking in up to 10 g of methamphetamine hydrochloride, the applicable tariff range of sentence is that of 3 to 7 years’ imprisonment.

36.An arithmetical application of the tariff for 8.98 g of ice would lead to a starting point of 78 months’ imprisonment. 

37.The sentencing tariff for trafficking in heroin as laid down in R v Lau Tak-ming[2] was held to apply to trafficking in cocaine as well in Attorney General v Pedro Nel Rojas[3].  The band of tariff for trafficking up to 10 grammes of cocaine is that of 2 to 5 years’ imprisonment.

38.An arithmetical application of the tariff for 1.67 g of cocaine would lead to a starting point of 29 months’ imprisonment.

39.Since the lowest starting point for trafficking in ice is 36 months’ imprisonment, there is no tariff equivalent quantity of ‘ice’ that would lead to a sentence of 29 months’ imprisonment.  As such, conversion of the cocaine into ‘ice’ for sentencing purpose cannot be done.

40.I will, therefore, adopt a combined approach in sentencing on charge 1.

41.If the 1.67 g of cocaine is treated as ‘ice’, the starting point for the total of 10.65 g of ‘ice’ would be slightly more than 84 months’ imprisonment, being an increase of 6 months when compared with the original sentence of 78 months for 8.98 g of ‘ice’.

42.Taking into consideration the less serious nature of cocaine when compared with ‘ice’, as reflected in the lower tariffs, I find that an overall starting point for both the ‘ice’ and the cocaine should be 81 months’ imprisonment.  In other words, for the 1.67 g of cocaine, I have increased the sentence by 3 months.

43.81 months’ imprisonment is the starting point that I adopt for charge 1.

Self-consumption

44.It is now trite law that in order for a discount for self-consumption to be granted, the court must be satisfied that ‘a significant proportion’ of the drugs being trafficked was meant for self-consumption[4].

45.Both the defendant’s urine test upon his recent detention at Lai Chi Kok detention centre and his previous enrollment with the Sheng Kung Hui Welfare Council for substance abuse counselling tend to support the fact that the defendant is, and has been, a user of ‘ice’.

46.According to defence counsel, the defendant would use dangerous drugs about 3 times a day, with ‘ice’ as the main drug, and cocaine and ketamine occasionally.  He would spend about $4,000 to $5,000 on drugs every month.  This differs with what the defendant said in his video recorded interview of $2,000 to $3,000 every month.

47.I was told that the defendant only started using ‘ice’ about 8 or 9 months prior to the present arrest.  Coupled with the fact that the defendant had never been convicted of possession of dangerous drugs in the past, the only reasonable inference must be that he is a new or non-habitual ‘ice’ user.

48.In the said case of Tam Yi Chun, at paragraph 26, the court relied on the expert evidence that for such a new ‘ice’ user, the daily average amount would be 0.05 g to 0.1 g.  This is in line with what the defendant had said in his video recorded interview, that he would use about 0.1 g of dangerous drugs per day.

49.It is not stated in defence counsel’s written mitigation how much ‘ice’ or cocaine the defendant was using each day, and Ms Wong does not have instructions to assist the court on the proportion of drugs in the defendant’s possession that was for his self-consumption despite the court’s enquiry.

50.Ms Wong also told the court that the defendant would elect not to give evidence in relation to the proportion of dangerous drugs for his self-consumption in any event.

51.Since the defendant has failed to offer through his counsel any suggestion that ‘a significant proportion’ of the drugs in charge 1 was for his self-consumption, there is simply no evidential basis for me to so find, and as such, it is not open for me to grant him a discount on this basis.

52.The defendant is, nevertheless, entitled to the full one-third discount for his timely plea of guilty and is sentenced to 54 months’ imprisonment on charge 1.

53.In relation to charge 2, the quantity of dangerous drug involved is 0.13 g of a powder containing ketamine. Simple possession of a dangerous drug would normally attract a sentence of 12 to 18 months’ imprisonment[5].

54.This being the defendant’s first possession of dangerous drug conviction, and given the small quantity, I will adopt a starting point of 9 months’ imprisonment.

55.The defendant is granted the full one-third discount for his timely guilty plea and sentenced to 6 month’s imprisonment on charge 2.

Totality

56.Taking a step back, I order that the sentence in charge 2 be served wholly concurrently to charge 1, on the basis that even if the ketamine had been added to the trafficking charge, it would not have made any difference to the final sentence of that charge.

57.The overall total sentence for the two charges is, therefore, 54 months’ imprisonment.