HKSAR v. Ho Tak Kuen

HCCC 143/2019

[2021] HKCFI 254

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: The defendant, Ho Tak-kuen, was originally the 1st defendant in this case and he was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. There was a co-defendant, D2, Hung Ka-woon, who 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 were committed to the Court of First Instance of the High Court for sentence.

On 9 August 2019, I sentenced D2 to 2 years’ imprisonment, and the sentence of D1, that is the present defendant, was adjourned pending further inquiries.

Summary of Facts

The Summary of Facts shows that in the small hours on 7 February 2018, police officers who were conducting an anti-dangerous drug operation laid ambush near the Apex Horizon and 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. That is the apartment where D1 claimed to be living. And no one answered the door when the police knocked and a raid was then conducted by the police. And there were two bedrooms, Room A and B, inside the premises and also a living room.

So, first of all, Room A, the door of Room A was locked and police officers knocked on the door. No one answered and the police officers broke open the door and found D2 inside sitting on the bed. During the police inquiries, D2 said she did not open the door as she felt scared. She was living there with her boyfriend for about a month, and her boyfriend had left the apartment, and there was a male called Ah Kuen living in the adjacent bedroom. Some cash was found inside a container on a table in this Bedroom A.

Now, Bedroom B. The door of Bedroom B was open at the time of the police entry and 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.

And then 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 Room B was a total of 786.08 grammes of a solid containing 686 grammes of cocaine.

Now, in the living room, 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 in the living room.

The 1st defendant was arrested and under caution he said he had nothing to say. DNA obtained from the 1st defendant was found on the bristles of a toothbrush and the filter tip of a cigarette butt.

In February 2018, the cocaine seized in this case had an estimated retail value of HK$1,047,845.

The 1st defendant admitted before the learned magistrate that he was trafficking in the cocaine seized in this case.

Background and mitigation

D1 was born in China in 1986, so he is now 34 years of age. I was informed that he came to live in Hong Kong when he was about 10 years old. He received education up to Form 2 and had worked as a transportation worker. He was married in 2013 but divorced in 2017 and there are no children out of the marriage.

The 1st defendant is not a man with a clear record. He had three previous convictions of possession of dangerous drug and had been sent to a drug addiction treatment centre and had been given a suspended sentence with a fine as well, 3 weeks suspended for 3 years and a fine of $500. And he was in breach of the said suspended sentence and served the 3-week sentence shortly after the sentence was imposed.

Mr Nelson Lam, counsel for the defendant, submitted that D1 committed the offence as he wanted to earn quick money. D1 had been unemployed since December 2017.

Consideration and reason for sentence

For the offence of trafficking in a dangerous drug, a person convicted upon indictment is liable to life imprisonment and a fine of $5 million. In the case HKSAR v Abdallah, the Court of Appeal set down guidelines for trafficking over 600 grammes of cocaine. The cocaine involved here is 686 grammes, which falls into the category of 600 to 1,200 grammes, with a starting point of 20 to 23 years. The quantity of 686 grammes of cocaine would, on an arithmetic calculation, result in a starting point of 20 years and 3 months, that is, 243 months.

From the Admitted Facts, the role played by the defendant was not simply that of a courier. He was also weighing and packaging the dangerous drug cocaine inside the room he occupied. There is, of course, no evidence that the defendant was the mastermind or that he was involved in a large scale of trafficking. Having considered all the circumstances, I am of the view that a starting point of 20 years and 3 months is appropriate here.

Although the defendant has three previous drug-related convictions, they are all for possession of dangerous drug and this is the first time he was convicted of trafficking in a dangerous drug. I will not enhance the starting point on account of his previous convictions.

The defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. Apart from the discount for plea, there are no other grounds for me to reduce the sentence. A one-third discount from the starting point of 20 years and 3 months would yield 13 years and 6 months, that is, using 243 months times 66.66 per cent equals to 162 months, and 162 months equals to 13 years 6 months.

So for the offence of trafficking in a dangerous drug, the defendant is sentenced to 13 years and 6 months’ imprisonment.