HKSAR v. Lam Kar Kui

DCCC 71/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 71 OF 2012

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Reasons for Sentence

1.The defendant has been convicted on his own plea of one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, cap 134, namely 12 grammes of a mixture containing 9.51 grammes of heroin hydrochloride.

2.The particulars of the offence are that at around 10.02 am on 9 November 2011, PC 34442 spotted the defendant and another male acting furtively in Mong Kok.  They were seen getting into a taxi.  PC 34442 followed them.  At around 10.20 am, they alighted from the taxi and separated.  The defendant was seen entering the subway of Olympic Garden in Kowloon City. PC 34442 entered the subway and intercepted the defendant.  Upon search, a plastic bag containing 47 packets of a mixture of suspected dangerous drugs was found from the left front pocket of the defendant’s trousers.  PC 34442 then arrested the defendant for the offence of trafficking in a dangerous drug.  Under caution, the defendant claimed that the 40 odd tablets of ‘4 Chai’ were for self-consumption.  At the time of his arrest, the defendant had HK$1,455 in his right front trouser pocket and HK$680 in the waist bag that he carried.

3.The 47 packets of suspected dangerous drugs seized from the defendant were examined by the Government Chemist and found to be a total of 12 grammes of a mixture containing 9.51 grammes of heroin hydrochloride, the dangerous drugs as set out in the particulars of the charge.  The estimated street value of the said dangerous drugs is HK$6,371.

4.The defendant has 26 previous court appearances, the last being in 2012 for dealing with property known or believed to represent proceeds of an indictable offence when he was sentenced to 12 months’ imprisonment.  The sentence was imposed on 10 January 2012, and he is currently still serving that sentence.  I am told that his earliest date of discharge will be on 11 July 2012.  His criminal record dates back to 1989.  Although in the antecedent statement it is recorded that he is currently serving a term of imprisonment for the offence of lending money at an excessive rate of interest, Defence Counsel has clarified that in fact although the defendant was initially arrested for that, the charge was subsequently amended and the criminal record correctly records the charge he is presently serving the term of imprisonment for.  Save for that, no issue is taken in respect of the contents of the antecedent statement.

5.He has previous convictions related to the possession of dangerous drugs as well as two convictions in 2001 for trafficking in dangerous drugs when he was sentenced to a total of 6 years and 8 months’ imprisonment. 

6.In mitigation, I am told that the defendant is aged 39.  He is now divorced.  He is a drug addict. His record discloses that he has been to the DATC on four occasions, the most recent being in 2009.  I am told that it was because of the prolonged police investigation in respect of the offence for which he is presently serving a term of imprisonment as well as his divorce last year that he resorted to dangerous drugs to deal with the pressure and stress that he was under – that offence goes back to 2006.

7.He was educated up to Form 3 in Hong Kong, and was a casual delivery worker at the time of his arrest earning HK$300 a day.  He lived alone here in Hong Kong.  He has been a drug abuser for many years - from his criminal record, one can see that his first conviction for possession of dangerous drugs was in 1994, when he was sentenced to the DATC.

8.The defendant now admits that he was in possession of the drugs in question for trafficking, although in mitigation Counsel for the defendant submitted that a part would be for his own consumption, at least one-third.  Counsel for the prosecution did not accept that as much as one-third would be for self-use.  As Counsel for the prosecution rightly said, it would not be possible to differentiate what would be for self use.  After discussion between the prosecution and defence, it was agreed that about one-fifth of the dangerous drugs seized from the defendant would be for his own self-consumption, ie 1.90 grammes whilst the rest, ie 7.61 grammes, was for trafficking.

9.As counsel has rightly said, the appropriate sentence for trafficking in up to 10 grammes of heroin hydrochloride is from 2 to 5 years’ imprisonment, pursuant to Lau Tak Ming [1990] HKLR 370.

10.The sentence follows the quantity of drugs.  That would put the quantity in the defendant’s possession for trafficking at the material time at the higher end of that spectrum, being 7.61 grammes of heroin hydrochloride, and would warrant a starting point of 3 years and 9 months (ie 45 months) imprisonment.

11.In HKSAR v. Ho Sui-Fung, HCCC 246/2010, Mr. Justice McMahon said:-

“There is no doubt that where a defendant is convicted of a trafficking offence, a successful assertion by him that part of the drugs the subject of the charge were intended for his own consumption may reduce his sentence. See HKSAR v Wong Suet Hau CACC366 & 487/2000 and also HKSAR v Cheung Ching Fai CACC443/2005.

Both those cases dealt with general principles rather than the actual procedure of sentencing in such a case, and I have not found, nor been directed to, any case which deals specifically with the mechanics of arriving at the eventual sentence.

In Wong’s case, the court on occasion referred to the fact of some part of the trafficker’s cache of drugs being possessed for self-consumption as a matter of mitigation. I think the court, in making that reference, meant no more than it was a matter which could result in a reduction in the sentence finally imposed.

In my view, the fact of possession of part of the drugs for self‑consumption should go to the starting point of sentence. It seems to me that once it is ascertained, whether by Newton inquiry or whether, as in this case, by agreement, what amount of the drugs was possessed for trafficking, then it will be that amount which establishes an initial starting point of sentence.

That initial starting point will then be enhanced by the amount of the drugs possessed for self-consumption, and the degree of enhancement will reflect the latent risk of those drugs also falling into the wrong hands. That will result in the final starting point of sentence. Any mitigatory factors will then be taken into account, and a final sentence for the offence will then be imposed.”

12.I have taken into account that the defendant is a drug abuser and that some of those drugs would have been for his own consumption.  There was no direct evidence of sale of any drugs.  I have also borne in mind the latent risk of the drugs for self-consumption falling into the wrong hands.

13.Looking at those features of the case, I have decided that the appropriate starting point for this offence is one of 4½ years’ (ie 54 months) imprisonment.

14.The defendant has pleaded guilty and he is entitled to a discount of one-third to reflect that.

15.That is the only mitigation of weight before me.

16.He is therefore sentenced to 3 years’ (36 months) imprisonment.

17.I have borne in mind that he is presently serving a term of imprisonment.  These are separate and distinct offences warranting consecutive sentences.  I have considered the totality principle of sentence and shall order that 4 months’ imprisonment be concurrent with his present term, and the rest to be consecutive.