HKSAR v. Lau Chi Man

DCCC672/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 672 OF 2010

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Reasons for Sentence

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1.The defendant pleaded guilty to 1 charge of "Trafficking in dangerous drugs" (Charge 1), 1 charge of "Possession of a dangerous drug" (Charge 2), and 2 charges of "Possession of apparatus fit and intended for the inhalation/ injection of a dangerous drug" (Charges 3 and 4).

Summary of Facts

2.At 9:30 pm on 8 April 2010, police officers began to monitor the activities in the vicinity of Flat A, 5/F, No.39 Mong Kok Road, Mongkok ("the Flat").

3.About 10:25 pm, DSPC 51852 (PW1) saw the defendant using his key to open the metal grille of the Flat. He approached the defendant and showed his police warrant card. The defendant immediately ran into Room 8 of the Flat (the "Room"), closed and locked the wooden door.

4.PW1 announced that he had a search warrant and asked the people inside to open up, but received no response. PW1 broke the wooden door and entered the Room with his colleagues. They found the defendant and his father sitting inside.

5.DSPC 45290 (PW3) searched the Room and found the items listed below. They were subsequently examined by a Government Chemist with the following results :

(i)  4 plastic bags which contained a total of 1.08 grammes of a solid containing 0.97 gramme of cocaine (collectively "E1");

(ii)  7 plastic bags which contained a total of 5.08 grammes of a crystalline solid containing 4.98 grammes of methamphetamine hydrochloride (collectively "E2");

(iii)  1 plastic bag which contained 8 tablets containing a total of 0.01 gramme of methamphetamine (collectively "E3");

(iv)  1 paper packet which contained 0.19 gramme of a mixture containing 0.14 gramme of heroin hydrochloride ("E4");

(v)  1 inhaling device (consisting of 1 plastic bottle inserted with 2 straws, one of which lined with tinfoil) which contained 79 millilitres of a liquid containing 0.41 gramme of methamphetamine ("E5");

(vi)  1 inhaling device (consisting of 1 plastic bottle inserted with 2 straws, one of which lined with tinfoil) which contained 92 millilitres of a liquid containing methamphetamine ("E6");

(vii)  1 syringe (with 1 hypodermic needle and 1 needle cap attached) which contained 0.5 millilitre of a liquid, which upon drying, containing 0.06 gramme of a solid containing heroin ("E7"); and

(viii) 1 syringe (with 1 hypodermic needle and 1 needle cap attached) which contained 0.5 millilitre of a liquid, which upon drying, containing 0.05 gramme of a solid containing heroin ("E8").

6.DPC 4008 (PW2) arrested the defendant. Under caution, the defendant admitted that :

(i)  he owned E1 to E3 for trafficking;

(ii)  he owned E4 for self-consumption;

(iii)  he owned E5 and E6 for inhaling ICE; and

(iv)  he owned E7 and E8 for injecting heroin.

Mitigation & Sentence

7.The defendant is now 32 years old. He has 10 previous convictions, one of which is "Possession of dangerous drug". The defendant is unemployed and relies on social welfare. Mr. IP submitted that the defendant had no money to buy drugs so he started to deal in small quantities. The contents of Mr. IP's written submissions are noted.

8.Regarding Charge 1, the Court of Appeal has laid down clear sentencing tariffs for trafficking in cocaine and ICE (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370 for cocaine; A-G v CHING Kwok-hung [1991] 2 HKLR 125 for ICE). For up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years imprisonment. For up to 12 grammes of ICE, the sentence ranges from 3 to 7 years imprisonment.

9.In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v YIP Wai-yin & another CACC 80/2003 and HKSAR v CHENG Yat-ming CACC 455/2006. I also bear in mind the remarks made by Ma CJHC in YIP Wai-yin that sentencing on the basis of individual drugs may lead to absurdity where the addition of the sentences for each individual drug leads to a higher overall sentence than if the whole quantity of the cocktail or batch merely contained the more or most serious of the various drugs.

10.The defendant trafficked in a cocktail of drugs consisting of 0.97 gramme of cocaine, 4.98 grammes of ICE and a negligible quantity of methamphetamine, which I will ignore for the purpose of sentencing. According to the sentencing tariffs, for 0.97 gramme of cocaine, the appropriate starting point is 2 years. For 4.98 grammes of ICE, the appropriate starting point is 4.5 years. In the present case, had the whole quantity of the cocktail been the more serious drug (i.e. 5.95 grammes of ICE), the starting point would have been 5 years. Based on the nature and quantities of the cocktail components, instead of simply adding 2 years onto 4.5 years, I consider that the "combined" approach would arrive at a realistic and fair sentence.

11.To adequately and accurately reflect the seriousness of the drugs involved as well as the more potent and harmful effect of a cocktail drug, I adopt a starting point of 5 years imprisonment. One-third discount is given for the guilty plea, reducing the sentence to 40 months (3 years and 4 months). Apart from this, I see no other mitigating factors which warrant any further discount. The sentence I pass for Charge 1 is 3 years and 4 months.

12.For Charge 2, only 0.14 gramme of heroin is involved, but it is the defendant's 2^nd conviction of "simple possession". I adopt a starting point of 9 months imprisonment. One-third discount is given for the guilty plea, reducing the sentence to 6 months.

13.For Charges 3 and 4, I adopt a starting point of 4.5 months imprisonment each. One-third discount is given for the guilty plea, reducing the sentence to 3 months for each charge.

14.Having considered the circumstances of this case and the totality principle, I order the sentences of Charges 1 to 4 to run in the following manners :-

(i)  Charges 2 to 4 concurrently;

(ii)  4 months in Charge 2 consecutive to Charge 1; and

(iii)  Charges 3 and 4 concurrent with Charge 1.

The total prison term for all 4 charges is 3 years and 8 months.