HKSAR v. TSIM KWOK KEE (also known as CHIM KWOK KEI)

DCCC 376/2019

[2019] HKDC 1491

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 376 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of trafficking in dangerous drugs. Particulars are that he on 18 January 2019 unlawfully trafficked in a 20.58 g mixture which contained 17.79 g of heroin hydrochloride.

Summary of facts

2.  The defendant was seen acting furtively outside room 4 of 15 Tsing Fung Street at 4:40 pm on 18 January by police constable 15799.  The officer intercepted the defendant and conducted a body search on him.  A white tissue with a plastic bag was found from his right rear trousers’ pocket, and another white tissue wrapped around two plastic bags were found from the left rear trousers’ pocket.  All 3 plastic bags contained suspected dangerous drugs.

3.  The defendant was arrested.  Under caution, he claimed that the three packets contained heroin, which were for his self-consumption as well as for sale to others.

4.  A house search was conducted of room 4, which the defendant claimed was his residence.  Two pairs of scissors, one straw and 4 lighters were seized.

5.  In the later cautioned video recorded interview, the defendant recanted his earlier claim about selling the drugs and said that he would give them out for free to his friends instead.  The defendant also said that he was going home to consume some of the drugs when he was arrested.  He bought the drugs in question from an “Uncle Wah” in Mongkok for $12,000 on 14 January.  The straw that the police seized from room 4 was for inhaling heroin.

6.  A second cautioned video recorded interview was conducted and the defendant was asked about “Uncle Wah”.  The defendant did not provide any information on him.

7.  The 3 plastic bags were examined by a government chemist.  One was found to contain 11 g of a mixture containing 9.5 g of heroin hydrochloride.  One was found to contain 1 empty plastic bag, and 37 packets of plastic or paper wrappings.  The 37 packets contained a total of 5.82 g of a mixture containing 5.07 g of heroin hydrochloride.  The third plastic bag found from the defendant’s rear pocket had one empty plastic bag inside, and 24 packets of plastic or paper wrappings.  This 24 packets contained a total of 3.76 g of a mixture containing 3.22 g of heroin hydrochloride.

8.  The total of 20.58 g of mixture, at $733 per gram, was worth $15,085.  At the time of arrest, the defendant had $1,000 cash and one Nokia mobile phone on his person.

Previous convictions

9.  The defendant has 19 convictions from 15 court appearances, with 2 being for trafficking in dangerous drugs.  The first was in 1981 when he was sentenced to 18 months’ imprisonment.  The second was in 1995 when he was sentenced to 6 years’ imprisonment.

10.  The defendant’s last conviction was 23 years ago back in 1996, when he was sentenced to one day’s imprisonment for fighting in a public place, which was ordered to be served concurrently with his trafficking in dangerous drugs sentence mentioned above.  He was last released from jail in 1999.

11.  Given the lapse of time since the defendant’s last conviction, as well as since his previous conviction for trafficking in dangerous drugs, I find that I will not enhance the defendant’s sentence on the basis of his being a repeated offender.

Mitigation

12.  The defendant was born in 1954 and is now 65 years old.  He was educated up to Form 1 level, single, and lives with his girlfriend at room 4.  He was unemployed at the time of arrest and was living on the $5,800 Comprehensive Social Security Assistance Scheme payment that he received monthly.

13.  The defendant and his two sons from a previous marriage had lost touch.  The defendant’s 92 year old mother lives in Chai Wan and the defendant would travel from North Point every day to visit her at around 2 pm, and would accompany her on her visits to the doctor.

14.  Counsel for the defendant told the court that the defendant’s girlfriend, who works as a kitchen worker at a dessert restaurant earning on average $10,000 per month, helps to support the defendant.  They met in 2011 and started to live together at room 4.  The rental of $5,600 per month has been paid by the girlfriend.  They do not have any rental receipts since it is a sub-let partitioned room.

15.  In mitigation, I was told that the defendant started using dangerous drugs about 40 years ago.  He stopped in 1995 after he was sentenced to 6 years in jail for trafficking in dangerous drugs.  He started using again after he was injured in a car accident in August 2018, thinking that heroin would help to lessen the pain.

16.  Counsel Ms Siu continued to inform the court that the defendant bought the drugs in question from a “Uncle Wah” for $12,000.  Since Uncle Wah was suffering from cancer and wanted to get rid of all the drugs in hand, he sold to the defendant at a discount.

17.  The defendant was only able to afford part of the drugs, so he found two of his drug using friends to buy the drugs together.  The defendant only had to put up $4,000 while the two friends would come up with the $8,000.  The defendant smoked the heroin and would occasionally share the drugs with his friend for free.

18.  The defendant was told by Uncle Wah that he could get the drugs for the discounted price of $12,000 on 14 January.  He went to Chai Wan on 18January first to his friends who live there to collect $8,000 from them, and then he went to Mongkok to buy the drugs from Uncle Wah.  He was on his way home to consume them when he was arrested.

19.  This version of fact, however, differs with the version given by the defendant in his first video recorded interview when he told the police that he bought the dangerous drugs on 14^th January.

20.  It was submitted that the defendant was not selling the heroin on the street, he bought the drugs with his friends, he did not traffic for profit, there was no organized crime background, and the case did not involve any young people.

21.  It is the defendant’s position that since he paid one third of the purchase price, and those were all for his self-consumption, and since there is no other acts of trafficking proved, all one-third of the drugs were for his self-consumption.  That being a significant proportion of the total heroin seized, he should be entitled to a sentencing discount of 10 to 15%, pursuant to the case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1116.

Sentence

22.  The applicable guidelines for trafficking in heroin hydrochloride are found in the case of R v Lau Tak Ming [1990] 2 HKLR 370.  Trafficking in heroin for quantities between 10 g and 50 g attracts a sentence falling within the range of 5 to 8 years’ imprisonment.

23.  An arithmetical application of the guidelines would lead to a starting point of 66 months’ imprisonment for 17.79 g of heroin hydrochloride in the present case.  This is the starting point I adopt.

24.  The defendant’s last trafficking conviction, as well as his last criminal conviction, was over 24 years ago.  The defendant had managed to stay on the right side of the law for a relatively long period of time, indicating that the previous sentence might have achieved its deterrent effect.  I will not enhance his sentence on the basis of him being a repeated offender given the lapse of time between his last and present offence.

No Self-consumption discount

25.  It is trite law that a defendant maybe entitled to a discount in sentence if “all or a significant proportion” of the dangerous drugs in a charge of trafficking are for his self-consumption[1].

26.  The defendant, through his counsel, put forward the claim that one-third of the drug found in his possession was for his self-consumption.

27.  During mitigation, I indicated to his counsel that, on the basis of the evidence available at that stage, I was not prepared to accept that such was the case.  Time was given for counsel to advise the defendant of his rights and to take instructions.

28.  Upon resuming, I was informed that the defendant elected not to give evidence on the issue.

29.  Despite the defendant exercising his rights, it remains for me to make a finding on whether a significant proportion of the heroin was for the defendant’s self-consumption and whether a discount should be accorded to him on that basis.

30.  The defendant had chosen to put forward two different versions of fact when questioned by the police.  He first told them that he was selling some of the dangerous drugs to others, then he changed that to just sharing with his friends, which in itself is extremely hard to believe and inherently improbable.

31.  The defendant was unemployed at the time, relying on a monthly payment of $5,800 from the CSSA Scheme.  Even if we assume that he is telling the truth about his girlfriend paying the rental, the defendant was in no position to be so generous as to be giving out free drugs.

32.  The only reasonable inference must be that the defendant was lying when he said that he was sharing the drugs for free with his friends.  I cannot speculate why the defendant would so lie, but judging from the direction of the change of story, he might be under the misapprehension that sharing with his friends would make him less culpable than selling to others.

33.  I was told that the defendant was injured as a passenger in a traffic incident on 5 August 2018.  A Medical Certificate was produced to support his claim.  The Certificate is dated 25 August 2018.  The defendant visited the Accident and Emergency Department of Ruttonjee Hospital on 24 August.  He was not required to be hospitalized, but was recommended for sick leave from 25 August to 7 September 2018 (13 days).  I was told that no surgery was performed and the defendant was basically left to heal on his own, with painkillers prescribed.  The pain was the reason the defendant started to use heroin again.

34.  I find that I can accept that the defendant was using heroin.  The question remains, however, whether a significant proportion of the drugs that he was in possession of were for his self-consumption.

35.  The defendant told the police in his first video recorded interview that he had bought all the drugs on 14^th January.  Counsel for the defendant told the court a different version, being that the defendant had bought all the drugs on the same day of the arrest and that he was on his way home with all the drugs.

36.  The defendant further elaborated his story by saying that he had put up 1/3 of the money for the purchase of the drugs and that the remaining $8,000 came from two other drug users.

37.  The defendant never mentioned anything about the joint purchase in either of his video recorded interviews to the police.

38.  If the defendant was telling the truth in his video recorded interview about buying them on 14^th January, the fact that he was still carrying all the drugs he bought on his person 4 days later, whether he was going back to or leaving home, would make the defendant’s case of not intending to sell the drugs untenable.

39.  It would also cast a huge shadow over his story of the joint purchase.  If the drugs were bought on 14^th January, why would the defendant still be in possession of all the drugs 4 days after the purchase, two-third of which did not belong to him but to other drug users, who would no doubt be quite eager to get their hands on the drugs. 

40.  This is why the defendant had to change his story of buying the drugs on the 14^th to how he had heard from Uncle Wah about the discounted drugs on the 14^th and the purchase was actually made on the 18^th. Only then would his story of a joint purchase make proper sense.

41.  I find that the defendant is telling the truth in his first video recorded interview when he told the police that he had bought the drugs on 14^th January.  He had no reason to lie about the time he bought the drugs at that point, because all he wanted was to convince the police that he never intended to sell any of the drugs, just to share them for free.

42.  On the other hand, he had ample reason to try to mislead the court about the date of purchase being on the day of arrest, in order for his story of a joint purchase to be more convincing and to not be inherently improbable.

43.  Having considered the available evidence, I find that I am sure that the defendant’s story of the joint purchase is not true.  He made up the story to support his claim of 1/3 of the drugs being for his self-consumption in order to get a discount on sentence.

44.  I do accept that the defendant may very well be a user of heroin and his resumed usage was triggered by the injuries he suffered in the car accident in August 2018.

45.  However, based on his lack of financial means to make the purchase, the fact that his last drug related conviction was over 24 years ago, and his counsel’s submission that the defendant had stayed away from drugs after he was last released from prison in 1999 until the car accident, I find that it cannot be the case that a significant proportion of the heroin was for his self-consumption.

46.  If I am not satisfied that a significant proportion of the heroin was for the defendant’s self-consumption, it is not for me to arbitrarily decide that a discount should be given in any event just on the basis of the defendant being a drug user.  As such, no discount is to be granted to the defendant on the basis of self-consumption.

Final sentence

47.  The only mitigating factor is the defendant’s timely plea of guilty, for which he is granted the full one-third discount.

48.  The defendant’s final sentence is, therefore, 44 months’ imprisonment.