HKSAR v. Ho Yue Kwok

HCCC 187/2019

[2020] HKCFI 213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 187 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant pleaded guilty to two charges of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

He was stopped and searched by police officers and found to be in possession of one packet of drugs in his trousers pocket. He was arrested, and under caution, he said that the “4 Chai” was for his own consumption. Upon analysis, the drugs were found to be 1.01 grammes of a mixture containing 0.35 grammes of heroin hydrochloride.

Later, the police conducted a search at the defendant’s residence and a total of 68.6 grammes of a crystalline solid containing 61.94 grammes of methamphetamine hydrochloride and 8.86 grammes of a mixture containing 3.14 grammes of heroin hydrochloride were found. The defendant admitted under caution that the drugs found belonged to him and claimed that they were for his self-consumption.

The retail price of all the drugs were around $40,639.

I am told that the defendant is now aged 65. He has five previous convictions, two of which are drugs-related. His last conviction was in 2012 for trafficking in dangerous drugs. He was sentenced to 40 months’ imprisonment for which he was discharged from prison in February 2014. I was also told that he used to work as a casual construction site worker, earning around twenty to thirty thousand dollars per month.

Counsel urged on his behalf for a discount for self-consumption and also a 30 per cent discount for his plea. In sentencing the defendant, I have taken into account the nature of the offence, the different kinds of drugs involved, sentencing authorities and tariff, as well as mitigation advanced by counsel.

Where different parcels of drugs were found within proximity of time, the aggregate amount is relevant for the purpose of sentencing. In the present case, the total amount of heroin in respect of the two charges is 3.49 grammes, so the two types of drugs involved here for my consideration for sentence are 3.49 grammes of heroin, which falls within the “up to 10 grammes” bracket, and then there is 61.94 grammes of ‘Ice’, which falls within the “10 to 70 grammes”, 7 to 11 years’ bracket. I then apply the various tests in Chan Yuk Leong to countercheck. With the absurdity test, the starting point I reach is around 10.5 years; the conversion test, starting point around 10 years; and with the ratio test, starting point 10.4 years. So I choose the 10 years as the starting point for the two trafficking charges.

Whilst it is conceded by the prosecution that the amount as claimed by the defendant (ie the amount of drugs in the two plastic bags marked with an X which was about 5.6 per cent) was for his own consumption, it is settled law that a sentencing court would only adjust the sentence if it is accepted that a significant proportion of the drugs were for the defendant’s own consumption.

What then is a significant amount? From the case of Tam Ling Yuen, it can be seen to be half, and other cases like Tsang Chung Keung, at least more than half, or two-third, Cheuk Kin Man. And more recently, in the case of HKSAR v Liu Ming Sze, the Court of Appeal said that even on the prosecution’s concession that 10 per cent of the drugs was for consumption, that was not a significant amount to entitle the defendant to a discount. Therefore, even on the prosecution’s concession that the 5.6 per cent of drugs were for the defendant’s consumption, this cannot afford him any discount other than what he is entitled on his plea.

The defendant did not plead guilty at the committal. By the time at the case management hearing when he indicated that he would plead guilty, the case had been listed for trial. The watershed is the fixing of the trial date.

I sentence the defendant to 93 months’ imprisonment, which is around 22.5 per cent discount and apportioned into the two charges as follows: Charge 1, 2 years, and Charge 2, 93 months, to run concurrently.