HKSAR v. Li Ho Fai

DCCC 575/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 575 OF 2014

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Reasons for Sentence

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1.The defendant pleaded guilty to three charges, including trafficking in dangerous drugs, possession of dangerous drugs, and possession of apparatus fit and intended for the inhalation of a dangerous drug.

2.On 12 April 2014, police mounted an anti-drug operation at Room 4, Flat A, 1st Floor, Kin Sing Building, Mau Tan Street, Yuen Long.  At about 5:52 pm, police spotted defendant returning to the above premises in a suspicious manner. 

3.Defendant was intercepted and brought back for a house search, the premises was a small room with no partition, but on a table, police found altogether 4 packets; 21 straw packets; 2 plastic bags; 2 folded $20 banknotes; and 10 pieces of plastic wrapping, all containing heroin.  And there were also methamphetamine (otherwise known as “Ice”) and apparatus found, including 1 plastic bag containing 0.29 grammes of crystalline solid containing 0.28 grammes of methamphetamine hydrochloride; 1 plastic bottle containing 22 millilitres of liquid with 0.1 gramme of “Ice”; 7 pieces of tin foil containing traces of heroin and “Ice”; and 1 inhaling device; 2 plastic sheets; 1 lighter and clip.

4.Government Chemist confirmed that there were altogether 4.96 grammes of heroin hydrochloride and 0.07 gramme of powder containing heroin; 0.28 gramme of methamphetamine hydrochloride and 0.1 gramme of methamphetamine; and also traces of powder containing heroin and methamphetamine.

5.Defendant was arrested and found with a chain of keys to the premises, 2 mobile phones and cash of $7,860.

6.Upon caution and video recorded interview, defendant essentially stated that he lived there with his girlfriend for about 5 to 6 years.  Being a drug addict, he took heroin and “Ice” occasionally.  He bought heroin in the morning on that day for $3,000, with discount for bulk purchase already, and would share with his girlfriend. They would take about 7 to 8 packets a day.  The drugs seized would last for about 2 to 3 days only.  While for the “Ice”, he bought it on 11 April 2014 for about $100 for self-consumption.  As for the tin foils and inhaling device, he would use it with the clip and lighter to take drugs.  He received CSSA for $4,300 per month and would spend about 300 to 400 per day to take drugs. 

7.The estimated street value of the drugs found for heroin would be about 5,400 and “Ice” for $118.

8.Defendant now admits in possession of the heroin for the purpose of unlawful trafficking, while possession of “Ice” for self-consumption.

9.Defendant aged 56. He has 18 previous convictions from 1975, most of which were possession of dangerous drugs, with one trafficking in dangerous drugs in 1995.

10.Mr Cheung, in mitigation, submits that defendant is a deep-rooted drug addict.  He has been in DATC for five times and still could not get rid of the addiction.  For the 4.96 grammes of heroin, he would approximately use 1 gramme for self-consumption and the rest for sharing with his girlfriend.  The drugs were not sold for profit nor was there any weighing scale found in the premises.

11.Trafficking in a dangerous drug is a very serious offence.  In R v Lau Tak Ming [1990] 2 HKLR 370, up to 10 grammes of heroin, 2 to 5 years’ imprisonment shall be imposed.

12.For the present case, the court will also take into account that for the 4.96 grammes in possession, there was 1 gramme of which would be used for self-consumption.  The court will also consider the case of HKSAR v Chow Chun Sang, CACC 135/2011, where 10 to 25% of further discount would be made for self-consumption.

13.Considering the above factors, I assess that the starting point for trafficking would be 3½ years’ imprisonment, with further deduction of self-consumption down to 3 years, and then for guilty plea be reduced to 2 years’ imprisonment for the first charge.

14.For possession of “Ice”, in HKSAR v Mok Cho Tik [2001] 1 HKC 261, starting point of bona fide user shall be sentenced in the range of 12 to 18 months’ imprisonment.  Defendant had been committing the same charges, same offences, for more than 10 times in the past.  I assess that 15 months of imprisonment shall be imposed, be reduced to 10 months upon his own plea.

15.For possession of apparatus fit for inhalation, starting point be 6 months and reduced to 4 months upon plea.

16.On totality principle, I assess that overall sentence of 28 months shall be imposed, the second and third charge be run concurrently, with 4 months consecutive to the first charge.

17.So the sentence is as follows:

1^st charge: 24 months’ imprisonment;

2^nd charge: 10 months’ imprisonment;

3^rd charge: 4 months’ imprisonment;

The 2^nd & 3^rd charges be run concurrently, of which 4 months be run consecutively to the 1^st charge, making a total of 28 months’ imprisonment.

18.So for all the charges concerned, the defendant is sentenced to 28 months’ imprisonment.