HKSAR v. Lui Yin Lung

DCCC 333/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 333 OF 2012

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HKSAR

V

LUI YIN LUNG

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REASONS FOR SENTENCE

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CHARGE AND CONVICTION

1.The defendant was charged with and pleaded not guilty to a count of trafficking in a dangerous drug, namely 23.79 grammes of a solid containing 20.17 grammes of cocaine, and 1.32 grammes of powder containing 0.97 gramme of ketamine.  Such offence is contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.The defendant indicated that he was prepared to plea guilty to possession of a dangerous drug.  Such indication was not accepted by the Prosecution.  As the evidence presented to this Court is insufficient to warrant a conviction for trafficking in a dangerous drug, the defendant is acquitted of the charge.  He was then convicted of possession of a dangerous drug under Section 8(1)(a) and (2) of the Dangerous Drugs Ordinance.

Sentence for possession of dangerous drug

3.S. 8(2) of the same Ordinance provides the maximum penalty as follows :    

“(2) Any person who contravenes any of the provision of the subsection (1) shall be guilty of an offence and shall be liable-

(a) On conviction upon indictment to a fine of $1,000,000 and, subject to section 54A, to imprisonment for 7 years.”

Evidence from the prosecution

4.About 2.15 a.m. on 8 March 2012, the defendant boarded PW1’s taxi at the roundabout of Shek Tau Street, Kwai Chung and requested PW1 to go to Chuen Yuen Secondary School also at Kwai Chung. Upon arrival, the defendant got off the taxi and was seen using his mobile phone.  When the police approached him he turned around and tried to board the taxi but was stopped by the police.

5.Upon search,

(i) a transparent bag which contained 23.79 grammes of a solid containing 20.17 grammes of cocaine; and

(ii) a transparent bag which contained 1.32 grammes of a powder containing 0.97 gramme of ketamine.

were found from the right front pocket of the defendant’s trousers.

6.Subsequently the defendant was arrested for the offence of trafficking in a dangerous drug. Under caution he admitted that he got the ‘Coke’ for his own consumption.  Upon further search, a pile of cash of about $18,000 (Exh. P-3) and 2 mobile phones (Exhs. P-4 and P-5) were found inside the black shoulder bag (Exh. P-8) carried by the defendant.

7.A house search was conducted on the defendant’s residence at Tsing Yi and nothing suspicious was discovered.

8.The average retail price per gramme, for transaction of 5 grammes and below in March 2012 was HK$1,532 for crack cocaine and HK$116 for ketamine.

9.It was uncontested :

(a) that purchase price for quantity over 5 grammes of dangerous drugs (like cocaine or ketamine in our case) would nevertheless cost less;

(b) that the daily dosage used by cocaine abusers varies a lot : (i) Recreational abusers would usually use less than one gramme a day; (ii) regular abusers would usually use one to two grammes a day; and (iii) crack smokers may use higher dosage; and

(c) that regular ketamine abusers would usually sniff one to two grammes a day.

Defence Evidence

10.The defendant is a 27 year old married man.  He was residing with his parents, his wife and a 3 year old son at Tsing Yi.  He used to be a car salesman and a cook.

11.The defendant was a drug addict.  He first took cocaine in 2003 and became addicted to it in 2008.  He needed to take cocaine almost daily with a dosage of 0.3 – 0.4 gramme per day and had to spend about $6,000 to $7,000 per month on cocaine.  The quantity of cocaine in this case would have lasted him 2 months.

12.As for ketamine, the defendant used to be heavily addicted to it in the period 2000 to 2009 and had to consume 1 gramme a day, but in recent years as he was relying more on cocaine, he reduced intake of ketamine to about $100 per week.  He normally kept the drugs at home inside his wardrobe and consumed them inside the toilet at home or at the rear staircase.

13.The defendant claimed that he started working on 16 January 2012 as a food hygiene manager at Chu Kee Restaurant in Tsuen Wan earning $18,000 per month.  Since 29 February 2012 he switched to working part-time (6:30 p.m. – 10:30 p.m.) there, as he had another job in the day time as a van driver (9:00 a.m. – 5:00 p.m.) earning $12,000 per month.  He received salary in cash from Chu Kee Restaurant, once on 7 February 2012 for $11,400 and the second time was on 7 March 2012 where he received $12,400.

14.The defendant also claimed that he contributed $2,000 to his parents and $4,000 to his wife monthly and that he had made some savings of about $40,000 when he was a car salesman in 2007 and 2008.  Such sum was kept inside his wardrobe in his residence all along.

15.On 7 March 2012, it was agreed by the drug supplier Ah Kin to sell the defendant 1 ounce (approximately 24 grammes) of crack cocaine for $14,000 and that some free ketamine would be given to the defendant.

16.On 8 March 2012, the defendant went to the roundabout at Shek Tau Street, Kwai Chung to get the drugs in a nearby flower bed as before.  He was then told to go to Chuen Yuen Secondary School to make payment for the cocaine.  Having arrived at the said school shortly, the police officers approached and arrested him for trafficking in dangerous drugs.

17.At that time, $18,000 cash was found on the defendant.  The defendant claimed that $12,400 of which were the salary he received from Chu Kee Restaurant on the previous day, the remaining cash was his own savings.

The background of the defendant and mitigation

18.The defendant is 27 years old.  He started to abuse various drugs in 2001 and had his first drug conviction at the age of 15.  Up to now he has 11 previous convictions, 8 of which were dangerous drugs related, including one trafficking in 2002.  He could be described as a persistent offender.

19.In mid-2009 not only he relapsed into taking ketamine, he even abused cocaine at the same time.  His last conviction for drug offence was in April 2011 and was sentenced to 16 months’ imprisonment.  After his release on 10 January 2012, he claimed that he still carried on with his drug abuse habit and had to take cocaine once a day with dosage of 0.3 to 0.4 gramme.

20.He had been to the DATC on three occasions in 2001, 2002 and 2004, and yet he kept indulging and abusing drugs. He was not determined enough to disassociate from his baneful peers and vice drug habit. Due to the nature of the offence of which he was convicted in the present case, a DATC suitability report was obtained on him.  The defendant has been kept in custody since March 2012, he is considered no longer a drug dependent and also unsuitable for admission to a DATC.

21.Prior to his present jail custody, he claimed that he took cocaine and ketamine almost daily costing him about $300 and $100 on each occasion.  His last dosage of cocaine and ketamine was taken on 7 March 2012.  The defendant was observed to show little remorse towards his misdeeds and gained no insight into his problems.

The range of sentences for possession of dangerous drug

22.In view of the offence and the quantity of drugs involved, an immediate custodial sentence is inevitable.  There is no sentencing tariff of such offence. Nevertheless the normal sentence range will be between 12 and 18 months’ imprisonment.

23.The Court of Appeal in HKSAR v Mok Cho Tik CACC 165/2000 maintained their view that :

“…. the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be.”

24.As the defendant is a repeated offender, this Court would adopt a starting point of 18 months’ imprisonment for possession of dangerous drug in view of the circumstances of the case and those of the defendant.

Latent Risk Factor

25.The Court of Appeal further stated that :

“The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking, and of course the quantity of drugs. The full circumstances of the risk must be assessed.”

26.The defendant had been a drug addict for over 10 years, he had 7 previous convictions for simple possession and one for trafficking.  On 10 January 2012, the defendant had just served an imprisonment term of 16 months imposed by a District Judge for an offence of possession of a dangerous drug.

27.In less than 2 months’ time and on 8 March 2012, the defendant was found in the street at about 2:15 a.m. with the drugs in question i.e. 23.79 grammes of a solid containing 20.17 grammes of cocaine and 1.32 grammes of powder containing 0.97 gramme of ketamine.  Such quantity of cocaine would according to the defendant have lasted him two months.

28.With regard to the defendant’s allegations that he has the means to buy the drugs and to justify his carrying the cash at the material time,  however, this Court did not accept the defendant’s evidence on his employment and the source of his income to be truthful.

29.The defendant further claimed that he contributed $6,000 to his parents and wife monthly and had to spend about $6,000 to $7,000 per month on cocaine and a few hundred dollars per month on ketamine.

30.In view of all the circumstances of the defendant and those of the case, including the ‘purported employment’ of the defendant, his previous conviction for trafficking, the nature and quantity of drugs, this Court believes that the risk of the drugs being redistributed to other people was real and self-evidently high, an enhancement of sentence for the latent risk factor is therefore warranted.

Sentence

31.As such, this Court would add 12 months to the starting point to reflect the high latent risk factor.  The appropriate starting point for this case would therefore be 30 months.  The defendant is entitled to a 1/3 discount for his initially indicated guilty plea to simple possession, so as to reduce the sentence to 20 months’ imprisonment.  There is no other mitigating factor which would justify a further reduction in sentence.  As such, the defendant has to serve a term of 20 months’ imprisonment.