HKSAR v. Lui Mun Hon

DCCC786/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.786 OF 2010

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Reasons for Sentence

1.The defendant faces 3 charges. Charge 1 is for possession of dangerous drugs, charge 2 for trafficking in dangerous drugs and charge 3 for possession of apparatus fit and intended for the inhalation of dangerous drugs.

2.The defendant pleaded guilty to all 3 charges.

Facts

3.The defendant was stopped and searched inside a fast food restaurant in Tai Po. A re-sealable transparent plastic bag was found in his right sock. The defendant was arrested for possession of dangerous drugs. Under caution he admitted that the “Ice” was for his own consumption. This form the basis of charge 1.

4.The defendant had HK$3,820 and RMB192 on him when he was arrested.

5.The defendant was then brought back to his home where the items in paragraph 6 of the summary of facts, including the dangerous drugs of charge 2 and paraphernalia of charge 3, were found. The defendant was arrested for trafficking in the drugs as well as for possession of equipment fit and intended for the inhalation of a dangerous drug. Under caution, the defendant said the drugs were for his own consumption, and the inhaling devices belonged to him.

6.In the subsequent video recorded interview, the defendant admitted further that he bought 10g of “Ice” at RMB2,500 in Huanggang, China. The “Ice” found on his person and in his flat was part of the 10g of “Ice” that he bought. All the “Ice” were for his own consumption. He had “Ice” on him because he planned to go to China after leaving Tai Po. The defendant Ketamine found in his flat was given to him by someone free of charge. The defendant repeated that he owned and used the inhaling devices and the other exhibits seized from the flat and that he was a CSSA recipient.

7.The suspected dangerous drugs found on the defendant and later on in his flat were later confirmed by government chemist to be dangerous drugs, as set out in the government chemist certificate. The inhaling devices and electronic scale were also found to have traces of “Ice” on them.

8.The total narcotic contents found in the flat in relation to charge 2 was 5.57g of “Ice” and 0.48g of Ketamine. The street value of all the “Ice” seized is about HK$4,249.91, the ketamine about HK$57.60.

Previous

9.The defendant has 17 previous convictions, with 2 being similar to charge 1 and 2 to charge 3. The defendant has no previous trafficking convictions.

Mitigation

10.The antecedent statement of the defendant is admitted.

11.Counsel for the defendant Mr. Hui rightly focused on the sentence of charge 2. There are 5.57g of Ice and 0.48g of Ketamine. For trafficking in Ice of up to 10g, the sentencing tariff is 3 to 7 years’ imprisonment after trial. Mr. Hui submitted that the amount of ketamine is so small comparing to the amount of Ice that the court should ignore the ketamine when sentencing. I agree with Mr. Hui and I have proceeded to sentence solely on the Ice contents in charge 2.

12.It is further submitted that the defendant made full admissions to the Police upon arrest. He told the police in the summary of facts that the ICE seized on him and from his flat were part of the 10g that he bought in China. Mr. Hui pointed out that the defendant pleaded guilty to trafficking on the basis of importation. He stressed that the drugs were for the defendant’s own use.

13.2 cases were submitted in support of the legal proposition that in a charge for trafficking by importation, the fact that the drugs so imported is to be for self-consumption is a strong mitigating factor. I will deal with the cases in more details later.

14.Mr. Hui submitted that there is no evidence to rebut the explanation tendered by the defendant to the police when he was first caught that all the drugs were for his own consumption. As such, the court should accept his version of fact as true and sentence him on that basis.

15.The defendant has no previous trafficking in dangerous drugs record. He is a drug addict. He first committed the offence of possession of dangerous drugs back in 1973. The defendant was last released from Drug Addiction Treatment Centre in 2008.

16.In relation to charge 1 and 3, Mr. Hui asked for the totality principle to be applied and the sentences to be made wholly concurrent.

17.Mr. Mayne for the prosecution very fairly accepted that there is nothing from the prosecution to directly dispute what the defendant said in his video recorded interview that the drugs were all for his own consumption. Mr. Mayne further accepted that as the evidence stands, the prosecution may have some difficulty asking the court to infer that the drugs found in the defendant’s flat were to be resold.

Sentencing Guidelines

18.The starting point after trial for trafficking in up to 10 grammes of “Ice” is 3 to 7 years’ imprisonment: Attorney General v Ching Kwok-hung [1991] 2 HKLR 125

Sentence

Charge 2

19.As I mentioned above, I will deal with the sentence of this charge on the Ice contents only. I will first of all adopt a starting point of 60 months’ imprisonment, reducing it by one third to that of 40 months’ imprisonment in recognition of the defendant’s plea of guilty.

20.I find that there is insufficient evidence in the summary of facts to prove that the defendant had imported the drugs into Hong Kong for the purpose of resale. I have taken into consideration the factors suggested in the case of HKSAR v Wong Suet Hau, Ice, CACC 366/2000 in assisting me to determine whether the drugs were for the defendant’s own consumption or for resale.

21.The Ice involved in charge 2 is not of a large quantity. The street value of all the Ice seized (that would be 8.66g, including those in charge 1) was HKD4,249.91. The value for the 5.57g in charge 2 should therefore be around $2,733.50, which could well be within the purchasing ability of the defendant without him having to resell some of it to support his addiction.

22.The Ice in relation to charge 2 are found in P-2 and P-6, with the majority being found in P-2 and not spread out in many small plastic bags as they would be if they were prepared to be sold.

23.The drugs were found at the residence of the defendant together with other paraphernalia associated with the consumption of the drug. There is of course the electronic scale found which could be associated with the weighing of drugs, but there is nothing else associated to the packaging and diluting of drugs found on the premises.

24.Despite his rather lengthy conviction record, the defendant has no previous convictions for drug trafficking and he was last released from the DATC in 2008, indicating that he had been a drug addict prior to him being sent there.

25.The defendant maintained that the drugs were for his own consumption all along. The defendant is on CSSA, but given the small value of the drug involved, he may well have been able to pay for his own drugs without trafficking in them.

26.Based on the above, I find that it is possible that the defendant did import the drugs for the purpose of self-consumption, and I grant him the benefit of the doubt.

27.The prosecution did not argue against the principles set out in R v Chan Mung Lung, CACC394/1991 and R v Hiroyuki Sato, CACC 430/1992, that the fact that trafficked drugs are for a defendant’s own consumption is a strong mitigating factor.

28.In the case of Chan Mung Lung, there was no finding in the District Court as to whether the imported drugs were in fact for the appellant’s own consumption. The District Judge sentenced according to the guidelines in Lau Tak Ming and imposed a sentence of 4 and a half years’ imprisonment after plea.

29.The Court of Appeal found that it was a relevant fact to consider and that if true, the fact that the drugs were for self-consumption would have been a strong mitigating factor. The court found that in the absence of a specific finding by the lower court, they should consider the sentence on the factual version most favourable to the applicant. The sentence was then reduced to that of 1 and a half years’ imprisonment. No reasons were given as to how they had arrived at the new sentence.

30.In the case of Hiroyuki Sato, the applicant brought drugs into Hong Kong but was intercepted at customs. Without holding a Newton enquiry, the learned trial judge rejected the appellant’s claim that the drugs were all for his own consumption. The Court of Appeal, applying Chan Mung Lung, found that the question of whether or not the importation of dangerous drugs was for self consumption was highly relevant to sentence. If the drugs were only for self consumption, it was a strong mitigating factor. In the absence of specific finding on this point, a sentence should be passed to reflect the factual version most favourable to the applicant.

31.The appeal was allowed and the sentence reduced from 5 years’ to 3 years’ imprisonment, a further 40% discount on top of the 1/3 given for his guilty plea.

32.Coming back to our present case, based on my finding that the drugs imported were for the defendant’s own use, I will grant a further 40% discount on top of the 1/3 discount already given and reduce the sentence for charge 2 to that of 24 months’ imprisonment (60 x 2/3 x 60%=24).

Charge 1

33.I will adopt a starting point of 12 months’ imprisonment, reducing it to 8 months in recognition of the defendant’s guilty plea.

Charge 3

34.The maximum term of imprisonment for this offence is 3 years’ imprisonment. I will adopt a starting point of 9 months’ imprisonment, reducing it to 6 months upon the defendant’s guilty plea.

Totality

35.I will order that 4 months' imprisonment in relation to charge 1 be served consecutively to the sentence in charge 2. I will order the sentence in charge 3 to be served concurrently to the rest of the sentence.

36.Total sentence for all 3 charges is therefore 28 months’ imprisonment.