D1 and D2 were jointly charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, Charge 3.
They were respectively charged with one count of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Chapter 134, Charge 2 and Charge 4.
D1 was additionally charged with another count of doing an act tending and intended to pervert the course of public justice, contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Chapter 221.
Both defendants pleaded guilty to all the charges that they faced before a magistrate and were committed to the Court of First Instance of the High Court for sentence.
Facts
According to the facts agreed by both defendants, at about 11:45 on 17 April 2021, police officers arrived at Room 1812, The Emperor Hotel, Happy Valley, Hong Kong (location 1) after receiving a report of unconscious persons found. D1, who claimed himself to be Chan Tsz-chung, was found inside the room together with a naked, unconscious male who was later confirmed to be dead.
D1 also told the police that the identity of the deceased person there was Mok Chi-ho and produced a Hong Kong ID card relating to Mok Chi-ho from his wallet. As the police later found dangerous drugs, an inhaling apparatus, and syringes in the room, D1 was arrested for possession of dangerous drugs and possession of inhaling apparatus.
On the next day, police officers escorted D1 to Room 1701 of Hotel Ease Causeway Bay, No. 39 Morrison Hill Road, Wan Chai, Hong Kong (location 2) for a search as D1 was found with a hotel room card accessible to the room which was reserved under the name of Mok Chi-ho.
With the assistance of the hotel, the police opened room 1701 and the safe. Upon search, the police found the following:
(1) A total of 8.75 grammes of a crystalline solid containing 8.63 grammes of methamphetamine hydrochloride;
(2) a total of 110 grammes of liquid containing 109 grammes of gamma-butyrolactone;
(3) a total of 0.19 grammes of a solid containing 0.14 grammes of methamphetamine; and
(4) devices and paraphernalia for consuming ‘Ice’ and dangerous drugs were found inside the safe in the room.
D1 was arrested and under caution, he remained silent. Subsequent identity check by the police revealed that D1 was actually Mok Chi-ho instead of what he claimed to be, Chan Tsz-chung, who was actually the deceased person at location 1.
In a subsequent cautioned video-recorded interview on 19 April 2021, D1 explained inter alia that:
(a) At the material time, he was wanted by police for three cases. So he was afraid to be caught by the police and that was why he used the deceased’s identity and the deceased’s Hong Kong ID card; and
(b) also he used the deceased’s identity in this case because the deceased was found dead in the hotel room, so he was afraid that the police would suspect him to be involved and he might get charged for more serious offence.
Upon investigation and based on the information supplied by D1, D2’s identity was revealed. At about 5:30 pm on 19 April 2021, police attended D2’s residence at Room 328, Wing Lung House, Fuk Loi Estate, Tsuen Wan, New Territories, location 3, for a house search. D2 was the registered tenant of location 3.
Inside location 3, D2 was located. Regarding the drugs found in location 1, D2 under caution claimed that it was D1 who asked him to come to location 1 to inject dangerous drugs, ‘Ice’, for D1’s friend, but he did not do so as he found that the arm of D1’s friend was already swollen. Police then conducted a house search at location 3 and the following items were found:
(1) 31 grammes of crystalline solid containing 30.65 grammes of methamphetamine hydrochloride, ‘Ice’;
(2) 0.29 grammes of a solid containing 0.24 grammes of 3,4-methylenedioxymethamphetamine and traces of methamphetamine, that is MDMA;
(3) 5,669.67 grammes of a liquid containing 5,569.23 grammes of gamma-butyrolactone, GBL; and
(4) an electronic scale, a bundle of unused resealable plastic bags, devices and paraphernalia for consuming ‘Ice’ and dangerous drugs, such as syringes and glass bottles were found inside the room.
D2 was cautioned for the seized drugs and he remained silent. Upon search, a hotel room card that is Room 509 of Hotel Pravo, Tsim Sha Tsui, location 4, were found on D2.
At around 9 pm on 19 April 2021, police escorted D2 to location 4 for a search. Upon inquiry, D2 was found to be the tenant reserving the room. Police then entered location 4 and a safe was found in the closet. Upon search, the following items were found inside the safe, which was opened with the passcode provided by D2:
(1) Four glass bottles, three of which contained a total of 83.2 grammes of a liquid containing 77.1 grammes of gamma-butyrolactone, GBL;
(2) a straw;
(3) two transparent resealable plastic bags containing a total of 1.21 grammes of a crystalline solid containing 1.21 grammes of methamphetamine hydrochloride, ‘Ice’; and
(4) two transparent resealable plastic bags containing a total of three tablets and a tablet fragment containing 0.63 grammes of 3,4-methylenedioxymethamphetamine, MDMA.
The hotel manager of location 4 confirmed D2 was the registered tenant of Room 903 between 18 and 19 September 2021 in Hotel Pravo. D1 later admitted responsibility for ownership of the drugs found in D2’s residence and he requested to see the police. Subsequently, police interviewed D1.
In the cautioned video-recorded interview on 24 May 2021, D1 said he bought about 27 grammes of the dangerous drugs, ‘Ice’, from a male supplier in Wan Chai for about HK$7,000. Then he brought the ‘Ice’ to D2’s residence and he left behind a large bag of ‘Ice’ on D2’s bed and three small bags of ‘Ice’ in an iPhone box found in location 3. He also left behind some opened bottles of G water in D2’s home.
He knew D2 in November 2020 from the homosexual online social media platform as friends. He usually went to D2’s home twice a week. He would take rest at D2’s home and he consumed dangerous drugs ‘Ice’. D2 told him before where he kept his spare key.
In April 2021, the estimated average street values of the seized methamphetamine hydrochloride is $547 per gramme, the ‘Ice’ found in location 2 and 3 were therefore $4,890 and $16,957 respectively.
Background of the Defendants
D1 is a single man, 35 years of age. He studied up to Form 5. He is not a man with a clear record, having appeared in court on no less than 18 occasions from 2003 to 2021. And he had 20 criminal convictions, mostly related to theft and one similar conviction of possession of dangerous drugs in 2021 for which he was sentenced to 12 months’ imprisonment. The defendant worked as a transportation worker since 2018.
D2 is also single, 38 years of age. He studied up to Form 5. He worked as a salesperson in Hong Kong before but has been receiving CSSA since 2020.
D2 had appeared in court three times involving six criminal records, including a possession of dangerous drugs record in 2006 and in particular, two trafficking in dangerous drugs record back in 2019 for which he was sentenced to 5 years’ imprisonment concurrently in the High Court.
Consideration
I have considered the nature of the dangerous drugs involved in this case, the Summary of Facts of this case, the background of the defendants and all the matters urged on the defendants’ behalf by their counsels, Mr C S Hui and Mr Dickson Li.
Charge 3 is the most serious charge facing both defendants. Trafficking in dangerous drugs is of course a very serious offence. A person convicted of this offence on the indictment is liable to be sentenced for life and to a fine of HK$5 million. Anyone convicted of the charge will be expected to be dealt with severely by the courts. Personal and family circumstances virtually play no part in mitigation. The strongest mitigating factor in this case must be the timely plea of the defendants for which they should be given the full one-third discount in sentence.
There are three types of drugs involved altogether in Charge 3. For trafficking for more than one kind of drugs, there are two different approaches open to the sentencing judge (see Yip Wai Yin and Another):
(a) An individual approach, where each component in a cocktail of drugs is looked at to establish the sentence relevant to each individual drug before an appropriate adjustment to the overall sentence was made; and
(b) a combined approach, where a sentence for the most serious drugs would be calculated before making an upward adjustment to take into account significant quantities of the other less serious drugs in terms of their potency.
Appropriate Starting Point for ‘Ice’
The ‘Ice’ involved in Charge 3 amounts to 30.65 grammes. According to the guidelines in Tam Yi Chun, the starting point after trial for trafficking 10 to 70 grammes of ‘Ice’ is one between 7 to 11 years. After considering the circumstances of this case and the amount of ‘Ice’ involved, a starting point of 8 years and 5 months is appropriate.
Appropriate Starting Point for MDMA
The MDMA involved in the charge is only 0.24 grammes. Applying the guidelines in Hii Siew Cheng, the starting point after trial is 6 months’ imprisonment.
Appropriate Starting Point for GBL
The GBL involved in this case is 5,569.23 grammes. According to the guidelines in Ko Wai Shing, based on the present quantities, the starting point after trial is about 4 years and 8 months.
Now as can be seen from the above figures, to sentence the defendants by adding the starting points of the three types of drugs together will produce a sentence of at least 12 years and 9 months’ imprisonment, which would be excessive and does not properly reflect the justice of the case.
To achieve a more reasonable and realistic sentence, I will therefore adopt the combined approach which involve an upward adjustment from the starting point of the base drug, in this case, ‘Ice’. While GBL represents nearly 99% of the total quantity of the three types of drugs, ‘Ice’ is obviously a more serious drug in terms of its potency. So I will still use ‘Ice’, as the basis of the calculation, to calculate the starting point and adjust the sentence upwards on account of the presence of the remaining drugs.
As said, according to the sentencing guideline for 30.65 grammes of ‘Ice’, the starting point is 8 years and 5 months’ imprisonment.
In determining the upward adjustment for the remaining 0.34 grammes of MDMA and 5,569.23 grammes of GBL, I examine the overall starting point by checking it against all the three tests as laid down by the Court of Appeal in the case of Chan Yuk Leong.
Before the hearing, I directed the prosecution and defence to do their calculations according to the tests as proposed by the Court of Appeal. Both Mr Hui and Mr Li today informed the court that they would adopt the calculation done by Mr Marcus Lee, SPP.
According to Mr Lee’s calculation, the absurdity test is 26 years and 7 months, using ‘Ice’ as the base and 4 years and 6 months using GBL as the base. The conversion test is 8 years and 8 months using ‘Ice’ as the base and 6 years and 6 months using GBL as the base. The ratio test however is only 4 years and 9 months’ imprisonment.
Now having applied the three cross-check test results, I consider that a total of 8 years and 8 months as a notional starting point under the conversion test would be most appropriate, since the starting point for ‘Ice’ alone in this charge is already 8 years and 5 months’ imprisonment.
I shall ignore the MDMA as it is obviously far less serious than the other two drugs in terms of both potency and quantity. The remaining 5,569.23 grammes of GBL is equivalent to trafficking an additional 4.1 grammes of ‘Ice’ which would therefore increase the starting point by 3 months.
I also note that the ratio test result, that is 4 years and 9 months, is even less than of the tariff for the quantity of ‘Ice’ alone in this charge which, if accepted, will totally ignore the existence of GBL and is thus wholly unrealistic.
The Role of the Defendants
As was held in the Court of Appeal case Herry Jane Yusuph at paragraph 59:
“The guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper; that is the person who is delivering, distributing or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”
Consequently, it would not be possible to properly apply the guideline until the court takes a view of the role and culpability of the defendant. In D1’s case, Mr Hui properly accepts that D1 is not merely a courier or storekeeper. According to his instruction, D1 bought the different types of drugs in this case with a view to resell it to the other drug abusers. Because of this, I shall increase the starting point by 6 months from 8 years and 8 months to 9 years and 2 months so as to properly reflect the role or more serious role played by D1 in this charge.
D2 on the other hand is just letting D1 to place the drugs in his home. His role in Charge 3 is therefore just a storekeeper on behalf of D1. So there is no ground to increase his starting point on account of his role in this charge.
Previous Records
Although D1 has many previous records, mostly were only theft-related with only one similar possession of dangerous drugs record. For this reason, I shall not further increase the starting point for D1.
D2 however has two trafficking in dangerous drugs records back in 2019. According to the information, he was only released in September 2020 from prison and that case also concerned ‘Ice’ and GBL.
In other words, D2 committed the present offence concerning the same types of drugs only after seven months after he served his time for the last trafficking in dangerous drugs case. Obviously, one can see that D2 did not learn his lesson even after a 5 years’ imprisonment punishment imposed by the High Court.
In order to deter D2 from further committing a similar offence, I consider an increase of 6 months’ imprisonment from the starting point is appropriate for him. Therefore, like D1, the starting point for D2 in this charge is also increased from 8 years and 8 months to 9 years and 2 months’ imprisonment.
Mixture of Drugs
In Chan Yuk Leong (at paragraphs 23 to 25) the fact that the seizure of two or more types of dangerous drugs at the same time, even though separately packed and not in a prepared mixture, may lead to two possible aggravating features.
One aggravating feature is the ability of the trafficker to cater to a wider market than the trafficker in only one kind of drug. More important is the effect on users of combinations of dangerous drugs.
In this case, the presence of GBL together with ‘Ice’ is of course an aggravating factor that cannot be ignored. The danger of consuming ‘Ice’ and G water is illustrated by the death or the sudden death of the deceased person in this case.
I will therefore enhance the starting point by 4 months to 9 years and 6 months’ imprisonment in the case of both defendants in this charge.
Self-consumption
In relation to the issue of self-consumption, both defendants through their counsels claimed self-consumption in this charge. They did not give evidence however to substantiate this claim. Instead, both Mr Hui and Mr Li made it clear that they were not trying to say that a significant portion of the drugs were for their self-consumption. Both counsels pointed to their urine test results in the CSD and also their criminal records to support that they were both drug abusers.
In determining the issue of self-consumption, the sentencing court must find that a significant portion of the drugs were to be consumed by the defendant. If he does not meet this threshold, he is not entitled to the discount suggested in the case of Chow Chun Sang which is 10 to 25%.
In another case, HKSAR v Liu Ming Sze however, the Court of Appeal pointed out that a sentencing court in any event still has a discretion to discount a sentence to reflect the element of self-consumption.
On the evidence before me, I accept that a certain amount of ‘Ice’ and GBL, though not significant, would be intended for their own consumption for both defendants. I will nevertheless exercise my discretion to give each defendant a discount of 3 months for self-consumption.
With such a discount, the starting point for the trafficking of dangerous drugs charge in Charge 3 is therefore one of 9 years and 3 months’ imprisonment.
Discount for Plea
Both defendants pleaded guilty at the earliest available opportunity. Each of the defendant as said will be given the full one-third discount. The resulting sentence is therefore 74 months or 6 years and 2 months’ imprisonment.
For the offence of trafficking in dangerous drug, Charge 3, therefore the sentence to be imposed is one of 6 years and 2 months’ imprisonment for both D1 and D2.
Possession Charges - Charge 2 and 4
For Charge 2 and Charge 4, I have considered the case of HKSAR v Mok Cho Tik. I take into account that each defendant is an abuser of dangerous drugs at the time of the offences.
Bearing in mind D1 and D2 was each also a drug trafficker apart from being an abuser of dangerous drugs, there was a latent risk that the drugs would fall into the hands of the others.
In my judgment, a starting point of 15 months’ imprisonment each for Charge 2 and 4 is appropriate. The defendant pleaded guilty is entitled to one-third reduction for these two charges.
For the reasons given, on Charge 2, I sentence D1 to 10 months’ imprisonment. For the reasons given, on Charge 4, I also sentence D2 to 10 months’ imprisonment.
Perverting the Course of Public Justice - Charge 1
In Charge 1, Mr Hui submitted that there is no dispute that D1 had hindered the police investigation into the death of the deceased person. The duration of the obstruction however, is only about two days.
In committing Charge 1, D1 did an act or series of acts which had a tendency to pervert the course of public justice in that:
(a) Knowing the investigation relating to the discovery of the dead body of Chan Tsz-chung was in progress or imminent;
(b) knowing that an investigation into the dangerous drugs and poison included in Part I of the Poisons List, as found at Room 1812 of The Emperor Hotel, Happy Valley, Hong Kong, was in progress or imminent;
(c) knowing that he was wanted by the Hong Kong Police after having absconded in previous court proceedings for other criminal cases.
In assessing the seriousness of this offence, according to the authorities, the factors that need to be taken into account include the seriousness of the substantive offence to which the perverting the course of public justice relates, the degree of persistence in the conduct in question by the offender and the effect of attempt to pervert the course of justice in the course of justice itself.
In this case, the attempt by D1 to conceal his own identity is foolish to say the least and bound to be discovered by the police in a matter of days.
Bearing in mind the above factors, a starting point of 9 months after trial should be appropriate. D1 pleaded guilty and is entitled to one-third discount in this charge. The sentence on Charge 1 is therefore 6 months’ imprisonment.
The sentence for D1 is as follows: Charge 1, 6 months’ imprisonment; Charge 2, 10 months’ imprisonment; and Charge 3, 6 years and 2 months’ imprisonment.
The sentence for D2 is as follows: Charge 3, 6 years and 2 months’ imprisonment; Charge 4, 10 months’ imprisonment.
Totality
Both counsels confirmed and after taking instructions from D1 and D2 that the possession charge and the trafficking charge actually concerned two different batches of drugs.
Taking into account the totality principle, I finally order that 2 months of the sentence on Charge 2 and Charge 4 shall run consecutively to the sentence for Charge 3, making a total of 6 years and 4 months’ imprisonment.
Charge 1 is a separate and distinct offence committed by D1 in addition to Charge 2 and Charge 3. In principle, the sentence on Charge 1 should be consecutive to the remaining drug charges. As a result, I order that the 6 months term of imprisonment for Charge 1 to run consecutively with the 6 years and 4 months’ imprisonment term for Charge 2 and Charge 3.
In relation to the charges that you face, D1, the total sentence in Charge 1 to Charge 3 is therefore a total of 6 years and 10 months’ imprisonment. For D2, the total sentence for you in Charge 3 and Charge 4 is therefore 6 years and 4 months’ imprisonment.