HKSAR v. WONG LAP KWAN

DCCC 569/2018

[2019] HKDC 536

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 569 OF 2018

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of trafficking in 2.51 grammes of a crystalline solid containing 2.44 grammes of methamphetamine hydrochloride (“ice”) and 23.95 grammes of a mixture containing 13.61 grammes of heroin, contrary to section 4 of the Dangerous Drugs Ordinance[1] (charge 1); one charge of possession of apparatuses fit and intended for the inhalation of dangerous drugs, contrary to section 36 of the Dangerous Drugs Ordinance (charge 2) and one charge of trafficking in 1.40 grammes of a mixture containing 1.16 grammes of heroin (charge 3).

2.  Full particulars of the offences are set out in the facts admitted by the defendant on 15 April 2019. 

3.  In summary at around 10:15 p.m. on 21 March last year the police were carrying out an anti-narcotics operation at Kin Wa House, Kin Ming Estate in Tseung Kwan O when they saw the defendant and a female walking towards Room 106 of Kin Wa House (“the flat”).     

4.  The police found on a glass table in the living room of the flat the following dangerous drugs:

(i) One transparent re-sealable plastic bag containing 27 pellets containing a total of 3.18 grammes of heroin;

(ii) One transparent re-sealable plastic bag containing 60 pellets containing a total of 7.42 grammes of heroin;

(iii) One transparent re-sealable plastic bag containing 3.01 grammes of heroin;

(iv) One transparent re-sealable plastic bag containing 0.12 gramme of ice; and

(v) One transparent re-sealable plastic bag containing 2.32 grammes of ice.

5.  The police also found on the glass table two pieces of tinfoil containing traces of heroin and midazolam; one paper roll containing traces of heroin; one glass bottle and one glass tube both containing traces of ice; two lighters; two electronic scales; two piles of unused transparent re-sealable plastic bags; one metal box containing white plastic wrappers; a box of tinfoil and one pack of plastic straws.

6.  The estimated street value of the heroin was around $17,483.50 and the ice was $1,352.89.

7.  In a video recorded interview, the defendant, inter alia, said that he bought the ice and heroin the day before from an unknown male for about $10,000; the glass bottle and glass tube were for inhaling ice and the tinfoil and the paper roll were for inhaling heroin; he used the transparent re-sealable plastic bags for packaging the heroin to take to work for self-consumption and the wrappers for packing left over heroin and that he had consumed ice and heroin for over ten years. 

8.  After his arrest the defendant was brought to court and remanded in custody.  Between 24 March and 26 March while in custody at Lai Chi Kok Reception Centre the defendant excreted six pellets containing a total of 1.16 grammes of heroin.

9.  Under caution the defendant admitted that he swallowed the heroin on seeing the police as he exited the lift.

10.  The estimated street value of the heroin was around $1,022.00.

Mitigation

11.  In passing sentence, I have carefully considered the written and oral submissions of Mr Khosa, including that from a previous relationship the defendant has two young children who are now looked after by his mother.  I have read the defendant’s mitigation letter in which he expresses his remorse and thanks his parents for their love and support. 

12.  I take into account that while the defendant has a criminal record, including convictions for possession of dangerous drugs in 1990, 2009 and 2014 and was sentenced to a DATC in 2004, 2009 and 2014, he has no previous convictions for trafficking in dangerous drugs. 

Guidelines

13.  In HKSAR v Tam Yi Chun[2] the Court of Appeal recast the sentencing guidelines for trafficking in ice.  The starting point after trial where the quantity of narcotic is up to 10 grammes is between 3 and 7 years’ imprisonment and where the quantity of narcotic is between 10 grammes and 70 grammes is 7-11 years’ imprisonment.

14.  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin.  Where the quantity of narcotic is between 10 and 50 grammes sentence falls within the range of 5-8 years[3]. 

Starting point

Charge 1

15.  Adopting the “individual” approach to sentence based on quantity alone the starting point for trafficking in 2.44 grammes of ice would be 3 years and 11 months’ imprisonment and for 13.61 grammes of heroin would be 5 years and 3 months’ imprisonment. 

16.  Applying what has been referred to as the “absurdity test” a starting point of 9 years and 2 months’ imprisonment is clearly excessive for if all the drugs were ice the starting point based on quantity alone would likely be just over 7 years and 4 months’ imprisonment. 

17.  I am satisfied that the “combined” approach to sentence is appropriate.  Although ice is the most potent drug the quantity of heroin is far greater.  Adopting the starting point of 5 years and 3 months’ imprisonment for trafficking in 13.61 grammes of heroin, I enhance the starting point by 6 months to 5 years and 9 months’ imprisonment to reflect the fact that the defendant was also trafficking in ice. 

18.  Applying the “conversion test” and what has been referred to as the “ratio test” I am satisfied the result for both tests would be a sentence of 5 years and 9 months[4]. 

Charge 3

19.  For trafficking in 1.16 grammes of heroin I adopt a starting point of 2 years and 3 months’ imprisonment. 

Own use

20.  The defendant claims that part of the ice and the heroin was for his own consumption. 

21.  Mr Khosa told the court that the defendant consumed about 1 gramme of heroin per day and that his consumption of ice was not regular.  The defendant used the flat, which was rented by a lady friend of the defendant, to consume drugs. 

22.  Mr Khosa submits that the defendant was not a commercial trafficker but a social trafficker who shared the drugs with his friends, including his lady friend who is now serving DATC. 

23.  Asked by the court whether the defendant gave the drugs to his friends or shared the cost of the drugs with his friends Mr Khosa, after taking instructions, informed the court that when the friends went to the flat to consume drugs the defendant would not charge them for the drugs but the friends would buy soft drinks and snacks.

24.  The defendant also consumed drugs at work and as he told the police the unused transparent plastic bags were used for packaging the heroin to take to work.  

25.  Considering the quantity of dangerous drugs was not large; the defendant had been to the DATC three times; equipment for taking both heroin and ice was found in the flat; the defendant explained in the record of interview why there was a requirement for the packaging and that on admission to Lai Chi Kok Reception Centre urine samples collected were positive for both heroin and ice, Mr Khosa submits that there is overwhelming evidence some of the drugs were for the defendant’s own consumption.  

26.  The prosecution has no objection that part of the drugs may have been for the defendant’s own consumption.  

27.  Taking into account that apparatuses for inhaling ice and heroin were found in the flat; the defendant has previous convictions for possession of drugs and has been sent to a DATC three times and the result of the urine samples collected on admission to Lai Chi Kok Reception Centre were positive for both ice and heroin, I am prepared to accept that part of the heroin and the ice may have been for the defendant’s own consumption. 

28.  In deciding how much weight should be attached to the fact part of the ice and the heroin may have been for own consumption, I have considered the decision in HKSAR v Wong Suet Hau[5], in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang[6]. 

29.  In Wong Suet Hau the Court of Appeal said that in most cases the difference will be slight[7].  From the decided cases a discount of between 10-25% from the basic starting point has been held appropriate where a significant proportion of the drugs were for own consumption. 

30.  Mr Khosa submits that a large proportion of the drugs were for the defendant’s own consumption and asks that the maximum 25% discount be given.  

31.  A discount of 25% from the basic starting point would result in a starting point of just less than 4 years and 4 months’ imprisonment which is the equivalent to trafficking in approximately 7.5 grammes of heroin.  The defendant is therefore claiming almost half of the drugs were for his own consumption.

32.  In HKSAR v Cheung Wai Man the Court of Appeal said that in determining whether there was a significant proportion the sentencing court must have credible and reliable information and material[8]. 

33.  The assertion that almost half of the drugs were for his own consumption is a mere bare assertion.  As indicated in court I do not accept the defendant’s assertion from the bar table that almost half of the drugs were for his own consumption. 

34.  The defendant told the police that the drugs found in the flat were purchased the day before and that he purchased heroin once per month[9].  Returning to the flat the next day in possession of six more pellets of heroin (charge 3), which he swallowed on seeing the police, is inconsistent with taking drugs to work to consume and inconsistent with purchasing the drugs the day before for sharing with his friends in the flat.         

35.  Having taken the defendant’s further instructions Mr Khosa confirmed that the defendant would not give evidence in support of his claim.  With regard to charge 3 Mr Khosa explained that the defendant had originally intended to stay out that night and therefore took with him the heroin for consumption at work the next day. 

36.  I reject this explanation.  I am not satisfied credible and reliable information and material has been placed before the court to show that a significant proportion of the heroin and the ice were for the defendant’s own consumption.

37.  I am also not satisfied credible and reliable information and material has been placed before the court to show that this was a case of social trafficking.  I also note that the defendant did not say to the police the drugs were for sharing with his friends. 

38.  Even if in part there was some social trafficking I am satisfied no discount is to be given for social trafficking.  In HKSAR v Wong Suet Hau[10]as applied in Hii Siew Cheng[11]the Court of Appeal said that except in cases involving very small quantities the fact of “social trafficking” was not in itself a general basis for imposing a lighter sentence.  13.61 grammes of heroin together with 2.44 grammes of ice is not a case involving a very small quantity. 

39.  Taking into account all the circumstances of the arrest; the latent risk factor and that possession of drugs carries a sentence in any event, I am satisfied that the starting point on charge 1 should be reduced by 6 months to 5 years and 3 months’ imprisonment, which is equivalent to a discount of just less than 9%. 

40.  Giving the defendant full credit for his plea of guilty reduces the sentence on charge 1 to 3 years and 6 months’ imprisonment.    

Charge 3

41.  For the reasons already given I reject any of the heroin in charge 3 was for the defendant’s own consumption. 

42.  Giving the defendant full credit for his plea of guilty reduces the sentence on charge 3 to 1 year and 6 months’ imprisonment. 

Charge 2

43.  For possession of apparatuses fit and intended for inhalation of ice and heroin, I adopt a starting point of 3 months’ imprisonment. 

44.  Giving the defendant full credit for his plea of guilty reduces the sentence to 2 months’ imprisonment. 

Totality

45.  Accepting that part of the heroin and ice for charge 1 may have been for the defendant’s own consumption I am satisfied a concurrent sentence is appropriate for possession of the apparatuses. 

46.  There is no clear evidence that the heroin swallowed by the defendant is from the same cache of drugs found inside the flat.  If the drugs found inside the flat were purchased the day before as the defendant told the police, there seems no good reason why the defendant had taken out some of the drugs only to bring them back to the flat.  It would therefore appear that the drugs are not from the same cache unless the defendant had taken some out to sell and returned with those he could not sell. 

47.  In all the circumstances and taking into account the small quantity of heroin; the seriousness of the offence and the defendant’s personal circumstances, including that he has no previous convictions for trafficking in dangerous drugs, I am nevertheless satisfied a concurrent sentence is appropriate and that a total sentence of 3 years and 6 months’ imprisonment properly reflects the defendant’s overall criminal culpability on the three charges[12].  

48.  The defendant is convicted and sentenced as follows:

Charge 1 – 3 years and 6 months’ imprisonment;

Charge 2 – 2 months’ imprisonment; and

Charge 3 – 1 year and 6 months’ imprisonment.

All sentences are to be served concurrently. The total sentence to be served by the defendant is 3 years and 6 months’ imprisonment.