HKSAR v. YU KWOK MING

DCCC 988/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 988 OF 2016

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REASONS FOR SENTENCE

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1.  Here are the reasons for sentence.

Charge

2.  The defendant has pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The particulars of the offence show that on 11 August 2016 near No 206 Portland Street, Mong Kok, Kowloon in Hong Kong, unlawfully trafficked in a dangerous drug, namely 8.61 grammes of a mixture containing 7.28 grammes of heroin hydrochloride. 

Facts

3.  The facts to which the defendant admitted show that at about 1225 hours on 11 August 2016, PC 14222 and other Police officers while patrolling along Portland Street near the junction of Shantung Street, Mong Kok, the defendant was seen coming out of a rear lane onto Portland Street.  He was facing PC 14222 at about 3 metres away.  The defendant was looking left and right and after looking at PC 14222’s direction he suddenly turned away.  PC 14222 found the defendant to be suspicious and intercepted him. Upon search, he found:-

(i) a resealable plastic bag in the right front pocket of the defendant’s trousers;

(ii) inside the plastic bag were five white pellets and 34 blue pellets, the subject of the charge;

(iii) cash, $6,766; and

(iv) two mobile phones.

4.  PC 14222 arrested the defendant for possession of dangerous drugs. Under caution the defendant said that the dangerous drugs were for his self-consumption.  In a subsequent video-recorded interview, the defendant claimed under caution that he worked as a night shift cleaner.  His income included the basic salary and overtime payment.  He was earning 13,000 a month and his employer paid him salary by cash on the 5th of each month.

5.  Second, on the offence day he was at Changsha Street and was approached by an unknown male who offered to sell heroin to him.  Third, the unknown male said if he bought all of the seized drugs the price could be lower, and fourth, he paid him HK$6,600 for the seized drugs.  The seized drugs were for self‑consumption.

6.  The Government Chemist found that the five white pellets contained 1.53 grammes of heroin hydrochloride and the 34 blue pellets contained 5.75 grammes of heroin hydrochloride.  Adding them together is 7.28 grammes of heroin hydrochloride.  The estimated market value of the blue pellets was $8,892.20. 

7.  At the material time the defendant was in possession of the heroin for the purpose of trafficking. 

Previous convictions

8.  He was brought to court on seven occasions with a total of nine previous convictions, possession of a dangerous drug in 1994 and 1995 when he was around 25 years old; between 2001 and 2012 he had five previous convictions of trafficking in a dangerous drug, keeping a divan in 2001 and burglary in 2007.

Mitigation

9.  The defendant is aged 46.  He was educated up to Form 3.  Prior to arrest he lived with his mother aged 68 in Shatin.  He once worked in a pest control company and as a cleaner earning a total of $28,000 per month.  By the end of 2015 the pest control company, upon discovery that he had two jobs, asked him to resign.  He then simply worked as a cleaner.  It meant he earned less and he suffered depression.  He took drugs again in February 2016.

10.  A letter written by the defendant was submitted to this court.  Mr Lai for the defendant submitted that the defendant is a habitual user as reflected in his previous criminal convictions.  He took heroin twice a day, each time he took around 0.70 grammes.  He referred this court to HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572 and HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, in particular paragraph 19, that is:-

“We are of the view that in drug trafficking cases when all or part of the drugs are intended for the trafficker’s own consumption the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10 per cent and 25 per cent of the basic starting point.”

I raised to Mr Lai as to why the defendant had around $13,000 cash with him on that day (he spent $6,600 on heroin and Police found $6,776 on him). Mr Lai, having taken instructions, submitted that the defendant was given overtime payment and the money was all his saving. On another matter I enquired with the prosecution if the Police had conducted any house search. Mr Lui for the prosecution said that the Police did so on the day of the offence and no drug paraphernalia was found in the defendant’s residence. To this reply Mr Lai made no submission.

11.  On the issue of self-consumption I have considered HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34; HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 and also HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572.  In Wong Suet Hau the Court of Appeal said that:-

“Where it is asserted that a significant proportion of the drugs were for the defendant’s own consumption it is unnecessary save in the most exceptional case where the division is readily quantifiable for the sentence to specify the relative amounts of proportions except perhaps in the very broadest of terms. In such circumstances the courts should so adjust sentence as to reflect the fact that not all the drugs were for trafficking.”

12.  The sentencing Judge in the case of Chow Chun Sang accepted the appellant’s contention that over half of the 7.22 grammes of Ice he trafficked in was for his own consumption, it was a significant proportion.  I told Mr Lai that I was not prepared at that stage to accept his mitigation that the defendant self-consumed a significant proportion of the drugs seized for reasons that:-

(i) It was unreasonable for him to carry a large sum of money on the offence day given the background he claimed.

(ii) The estimated value of the drug was $8,892 but the defendant alleged he could buy it at a lower price, that is $6,600.

(iii) No drug paraphernalia was found on him and in his residence.

(iv) Although the criminal records show that he had two previous convictions of possession of a dangerous drug, one in 1994 and the other in 1995 and was sent to DATC in 1995, the subsequent records were trafficking in a dangerous drug.

13.  Mr Lai was asked if further evidence would be adduced to support the defendant’s claim of self-consumption.  In light of the aforesaid, the defendant elected to testify in a Newton hearing but called no other witnesses.

Newton Hearing

14.  In-chief, he gave evidence that he earnt $25,000 a month when he worked both as a cleaner and worked for a pest control company.  However, he quitted the job in the pest control company by the end of 2015 and worked as a cleaner only earning $13,000 a month.  He had overtime payment which was paid a week after conclusion of the O/T work.  He was paid cash and he had some savings. He consumed one gramme of heroin a day, sometimes at home and sometimes in a guest house by means of chasing the dragon and using tin foil.  He was advised by his Church to attend drug withdrawal treatment. 

15.  On the date of the offence, he was very unhappy and he took a walk alone at Changsha Street.  He was not happy for he had taken dangerous drugs again for several months.  He said he was under great pressure and wanted to die.  At the material time he had cash, around $12,000, and was approached by a male who offered to sell him the subject dangerous drugs at a lower price.  He said he would consume two or three pellets of the subject dangerous drugs each day. 

16.  It came a stage when the defendant testified that he did not know the meaning of trafficking.  The subject dangerous drug was for his own consumption and he had no intention to sell it to others.  This seemed to be contrary to his plea of guilty to the charge.  Given the unusual circumstances and given that there was no objection by the prosecution, I invited Mr Lai to explain to the defendant the meaning of trafficking and other related matters.  I indicated that I would hear submissions, if any, in respect of an application for reversal of plea. 

17.  Having conferred with the defendant, Mr Lai informed this court that the defendant confirmed his plea of guilty.  The defendant continued to testify and gave evidence that he understood the meaning of trafficking; he would consume half of the subject dangerous drugs; and he would sell the remaining to others. 

18.  In cross-examination the defendant said his mother was responsible to pay for the rent.  He gave her $2,000 a month when he worked solely as a cleaner and spent $2,400 on himself.  The cash found on him was his overtime payment.  He was also cross-examined on his financial means to support his monthly consumption of drugs.

Reasons for sentence

19.  Having heard and seen the defendant in the witness-box, I found him not to be honest.  In respect of the subject dangerous drug, he said in cross-examination that it could last for his own consumption for eight to nine days.  He would sell half of the subject dangerous drug to others if someone asked for it, if no, he would then consume it as well.

20.  He agreed that in order to support his addiction for a month he needed three times more of the quantity of the subject dangerous drug.  Assuming he could buy the same amount of dangerous drug at $6,600, he had to pay $6,600 x 3 which is equal to $19,800 a month to satisfy his needs.  He agreed that he spent more or less $20,000 a month on drugs. 

21.  Clearly, this amount of money exceeded his monthly earnings.  At one stage he disagreed that his income was not sufficient to support his need for drugs.  On further questioning he agreed that his monthly income of $13,000 was insufficient to support his drug addiction.  Although he agreed that he sold drugs to others to fund himself to buy drugs, I do not lose sight that he said he earned $13,000 a month and paid his mother $2,000 and spent $2,400 on himself.  It meant he had $8,600 left and this amount was wholly insufficient to support his claim that he consumed one gramme of heroin a day. 

22.  Obviously the defendant did not have the ability to acquire half of the subject dangerous drug for self-consumption as claimed.  Besides, it was not in dispute that no drug paraphernalia was found on the defendant and in his residence in Shatin.  Having considered all the evidence I rejected his evidence.

23.  In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Lai and written in the defendant’s letter. Trafficking in heroin is a serious offence and the Court of Appeal has laid down clear sentencing guidelines with a view to deterring potential offenders.  In R v Lau Tak Ming & Others [1990] 2 HKLR 370 the Court of Appeal said that where the narcotic content is up to 10 grammes the sentence upon conviction after trial falls within the range of 2 to 5 years. 

24.  Mr Lai asked this court to adopt a starting point of 4 years and 2 months’ imprisonment, that is, 50 months.  The subject dangerous drug i.e. heroin hydrochloride involved here is 7.28 grammes.  I adopt a starting point of 50 months’ imprisonment.

Self-consumption

25.  As I have stated above, I rejected the evidence of the defendant that he would consume half of the subject dangerous drug (a significant proportion). In any event, even if the defendant possessed part of the subject dangerous drug for self-consumption it would be only a small amount.  Given this background there would also be a latent risk of him selling that part of the drug. 

26.  As simple possession of dangerous drugs carries a term of imprisonment, at the end of the day even if there is a small amount of dangerous drug for his own consumption it will not effectively affect the sentence.  All in all, the defendant’s plea for a reduction in sentence based on self-consumption is rejected.  I am sure he did not possess any significant amount of the subject dangerous drug for self‑consumption.

27.  Given that a Newton hearing was held, the defendant is not entitled to a full one-third discount of sentence for his plea of guilty.  In the Newton hearing, the only issue to be determined was whether or not a significant proportion of the subject dangerous drug was for the defendant’s own consumption.  The hearing itself did not last long.  In these circumstances I am prepared to give him a 25 per cent discount of sentence. 

28.  The defendant is therefore sentenced to 37 months’ imprisonment.