HKSAR v. Ho Tak Kuen and Another

HCCC 143/2019

[2019] HKCFI 2124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 143 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Now, the 1st defendant Ho Tak-kuen(何德權), D1, was chargedwith one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

The 2nd defendant Hung Ka-woon(洪嘉媛), D2, was charged with one count of occupier permitting premises to be used for the unlawful storage of a dangerous drug, contrary to section 37(1) and (2) of the said Dangerous Drugs Ordinance.

Both defendants pleaded guilty to their respective charge before a magistrate and was committed to the Court Of First Instance of the High Court for sentence.

Both defendants appear before me today, 9 August, for sentence. After they confirmed their plea and the Summary of Facts, D1 asked and was granted an adjournment, and so I will deal with the sentence of D2 first.

Summary of Facts

In the small hours on 7 February 2018, police officers who were conducting an anti-dangerous-drug operation laid ambush near Apex Horizon. D1 was intercepted when he walked out of the building. Upon search, police found, among other things, a key card which could give access to Room 3906 of the building - we will call that “the apartment” - where D1 claimed to be living at. No one answered the door when the police knocked, and a raid was then conducted by the police.

There were two bedrooms, A and B, and a living room inside the apartment. In Room A, that door was locked. Police officer knocked on the door and no one answered. The officers then broke into Room A and found D2 sitting on the bed.

During police inquiries, D2 said she did not open the door as she felt scared. She had been living there with her boyfriend for about a month. Her boyfriend had left the apartment and there was a male called “Kuen” living in the adjacent bedroom. Cash in the sum of US$300, RMB4,700, HK$10,140 were found in a container placed on a table in Room A.

Now, bedroom B. The door of bedroom B was open at the time of the police entry. The following items were found on the desk inside this room:

(a) a black-coloured plastic bag containing a piece of tinfoil paper containing a plastic bag containing 502 grammes of a solid containing 436 grammes of cocaine;

(b) a transparent resealable plastic bag containing 12 plastic bags containing 284 grammes of a solid containing 250 grammes of cocaine;

(c) an electronic scale containing 0.07 gramme of a solid containing cocaine; and

(d) two lighters, a pair of chopsticks, a heat sealer, a plastic spoon, a paper bag containing some straws, a glass pot and HK$20,560 cash were found.

Inside the drawer of the desk, there was an electronic scale containing 0.01 gramme of a solid containing cocaine and stacks of empty resealable plastic bags.

The total quantity of drugs seized from bedroom B was 786.08 grammes of a solid containing 686 grammes of cocaine.

In the living room, there were items including a glove, a metal container, a metal cover, a metal spoon, two metal sieves and a metal pot (which were all found to contain traces of cocaine or minute amount of a solid containing cocaine) were placed on top of a washing machine there.

Under caution, D1 said he had nothing to say.

D2 under caution said the drugs belonged to the male called “Ah Kuen” whom the police just brought into the apartment. And D2 said in her video-recorded interview under caution, among others:

(1) She rarely went to the apartment. The last time she went to the apartment was for going there to pay the rent and then she slept at the apartment. She could gain access to the apartment because someone at the reception would open the door for her or her boyfriend called Tam Ka-shing would open the door for her to enter the apartment.

(2) There were two bedrooms in the apartment. One of these bedrooms was bigger and was used by her, that is bedroom A, and she had placed her clothes and her cosmetic products in that room.

(3) She did not have a job. The US dollars and the renminbi seized from bedroom A belonged to her and she had obtained the money from her parents. The Hong Kong dollars seized from the bedroom A belonged to her boyfriend Tam.

(4) She had never seen the $20,560 cash seized from bedroom B.

The apartment was rented in the name of a male called Tam Ka-shing for 6 months from 5 January 2018 to 5 July 2018 for $18,700 per month.

According to the agreement, D2 was also a licensee who could occupy the apartment during this period. Tam Ka-shing was not found in the apartment but he was subsequently arrested and released.

In February 2018, the cocaine seized in this case had an estimated retail value of $1,047,845. And D1 admitted he was trafficking in the cocaine seized in this case. And D2 admitted she was an occupier of the apartment and she permitted the apartment to be used for the unlawful storage of the cocaine seized in this case.

Background and mitigation

Now, based on the antecedent statement and what Mr Richard Donald, the 2nd defendant -- D2’s counsel told me, D2 was born in China and is now 33 years of age. She is single but was previously married and divorced. She received education up to Form 7 and had worked as a nurse and a beauty consultant. She had one previous conviction of possession of dangerous drug and was fined $2,000 in 2010.

I was informed that when D2 was married, her husband took up with her younger sister which caused disharmony in the family. As D2’s family sided with the sister, D2 felt she could not return home after the divorce. She then became the girlfriend of this Tam and the licensee of the apartment, and it was Tam who decided to rent out one of the rooms to D1. It was only a week prior to D2’s arrest that she became aware of D1’s involvement in dangerous drug. She remonstrated with Tam and had tried to have D1 leave the apartment. And D2 became ill four days before the arrest and had to stay in bed, and she was not able to leave the apartment which was confirmed by the CCTV.

After the arrest, D2 is no longer Tam’s girlfriend. She now has another boyfriend who was in fact an old boyfriend, and the father of this new (but also old) boyfriend had written to the court, asking for a chance to be given to D2. I also have a letter from a Reverend Mya Lee of the Hong Kong Christian Kun Sun Association. Reverend Lee met D2 in prison and learnt of her background and the said incident involving her former husband and her sister. Reverend Lee was of the view that embracing her religion again helped D2 to heal herself and to start afresh. Reverend Lee also asked for leniency on D2’s behalf.

In mitigation, Mr Donald stressed that D2 pleaded guilty at the earliest available opportunity. D2 was remorseful. And after she became aware of the situation one week prior to the arrest, she already endeavoured to have D1 stop the activities and to leave the apartment. Mr Donald submitted that this present case is in a similar position as the defendant in the leading case of HKSAR v Ho Wing To and asked this court to impose a sentence of 2 years as in the case of Ho Wing To upon appeal.

Consideration and reason for the sentence

For the offence of being an occupier permitting premises to be used for the unlawful storage of a dangerous drug, a person convicted on indictment is liable to a fine of $5 million and imprisonment for 15 years. There are no sentencing guidelines for this offence. The extent of knowledge, the degree of involvement, the amount of financial benefit, if any, are all relevant and important matters to be taken into consideration to determine the sentence. This is see the case of R v Lee Kwok Keung CACC 595/1996 and the case of HKSAR v Ho Wing To [2011] 4 HKLRD 465.

What then was the culpability of D2? D2 was a licensee to the apartment because of her relationship with her then boyfriend Tam. I have said that she only became aware of D1’s dangerous-drug activities a week before the arrest, and she had tried to have D1 stop such activities and to leave the apartment. I also accept that she had been ill for four days prior to the arrest as the prosecution accepts that she was indeed not captured by the CCTV going in or out of the apartment during those period.

Now, in this case, the amount of cocaine stored was not insubstantial - 686 grammes. In the case of HKSAR v Abdallah[2009] 2 HKLRD 437, the Court of Appeal set down guidelines for the trafficking of cocaine. An amount of 686 grammes falls into the category of 600 to 1,200 grammes with a starting point of 20 to 23 years. So if D2 had been convicted of trafficking in this amount of cocaine, the starting point would have been 20 years’ imprisonment.

I have considered Mr Donald’s submission that the circumstances of this case were similar to those in Ho Wing To. In Ho Wing To, the defendant allowed a 16‑year‑old boy to stay at her own place after the latter was chopped by his father, and it was this boy who kept dangerous drugs in the living room. The defendant told the boy to remove the dangerous drugs to her own bedroom because she was afraid that her own sons might find the dangerous drugs, and the boy did so. And then the boy was stopped by the police which resulted in the police coming to the premises and found the dangerous drugs in her room. And these drugs involved 34.33 grammes of ‘Ice’, 17.12 grammes of powder ketamine valued at $26,492 and there were 253 tablets containing 29.80 grammes of ketamine and also a small quantity of cannabis, of course, together with packing equipment.

In the present case, the dangerous drug involved was more in quantity and value although it is one type of drug - cocaine. One also would not have been quite as sympathetic to the defendant’s position as to the defendant involved in Ho Wing To. Of course, it is difficult to compare cases as the factual matrix would be very different. Having considered the culpability of D2, I agree with Mr Donald that a proper starting point of 3 years is appropriate here. D2 had pleaded guilty at the earliest available opportunity and I will give her the full one-third discount.

I am glad to hear that D2 has renewed her faith and has learnt to heal herself. I certainly hope that with her faith and support from various people, she will start afresh and stay away from crime once released from prison.

So for the offence of occupier permitting premises to be used for the unlawful storage of dangerous drug, D2 is sentenced to 2 years’ imprisonment.