HKSAR v. HO SIU LOI

HCCC 123/2018

[2018] HKCFI 2513

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 123 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

This case originally concerned two persons who were closely connected in time and location. I have already dealt with the other person but for reasons connected with the requirement to seek a report from the Drug Addiction Treatment Centre, this accused, Mr Ho Siu-loi, has been delayed so far as his sentence is concerned.

Mr Ho was committed for sentence by a magistrate on 9 April 2018 on a charge of possession of a dangerous drug. Mr Ho admitted the Summary of Facts at the time he was committed.

On 8 June 2017, Mr Ho attracted the attention of police officers as he left a flat in Pak Tin estate. For a short chase, Mr Ho was intercepted and brought back to the flat. He was searched and inside his right front trouser pocket, a cigarette box containing a pack of suspected dangerous drugs was discovered. Indeed, those drugs were subsequently and now analysed and found to be 6.58 grammes of a crystalline solid containing 6.43 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.

Mr Ho was arrested for possession of a dangerous drug. He announced at the caution which was administered on him, he said: "This dangerous drug ‘Ice’ is for my own consumption. Ah sir, please give me a chance"

Mr Ho was taken to a police station and submitted to a video recorded interview under caution and told police that he had previously bought ‘Ice’ from a gentleman in Pei Ho Street on the morning of 8 June 2017. He said he paid $1,000 for the drugs. He then kept the drugs in the place where it was found by the police. When he was leaving the flat in question, he said he was going to buy a drink soon he was intercepted by the police. He told the officers in the interview that he had been addicted to ‘Ice’ and consumed a gram of ‘Ice’ daily.

It was agreed that the market value of the ‘Ice’ seized from Mr Ho was $2,850-odd.

Mr Ho is a 38-year-old man. He was born in Hong Kong. He received education up to Form 3 level in Hong Kong. He was a part-time worker at the time of the offense. He lived with his parents at the premises in Lai King Estate.

He has a long history of drug offenses. His first conviction for possession of dangerous drugs occurred in 1994. There are, so far as I can see, three convictions with theft as well as a long history of convictions for possession of dangerous drugs. Perhaps significantly, so far as the theft convictions are concerned, they all resulted in orders for detention in a Drug Addiction Treatment Centre. Those occurred in 1995, 1999 and 2001.

Mr Ho was also convicted in 2005 for trafficking in a dangerous drug which he received a sentence of 6 months’ imprisonment. A further conviction for trafficking occurred in 2012 where he was sentenced to 3 years and 2 months.

Counsel for Mr Ho informs me, and is, in the circumstances, easy to accept that he is or perhaps was a long term drug addict. I am informed and I accept that he has been addicted to drugs for something of the order of 14 years including the last 10 being addicted to ‘Ice’.

I sent Mr Ho for assessment at a DATC. He was assessed as no longer addicted. That is good news. The accompanying report has been very helpful and I have taken it fully into account.

Mr Ho accepts the facts in that report but I am informed through counsel that he is determined to prove the CSD officer’s prognosis as to his future, he is determined to prove that wrong.

He was arrested for this offense on 8 June 2017. I was informed he was granted bail, regrettably Mr Ho committed another offense, that is trafficking in dangerous drugs while on bail. He was convicted in September 2017 on his own plea. He was sentenced to 16 months’ imprisonment and the court activated the suspended sentence in respect to the two offenses of possession of dangerous drugs which had occurred in 2016.

I am informed that the sentences thus received and activated led him to serving imprisonment until May 2018. From that day onwards he was reminded again in custody.

In submission to mitigation, Ms Emily Cheung, counsel for Mr Ho submits this pleaded guilty at the earliest opportunity and is remorseful. Further and perhaps more importantly, the submission comes with the realization that his life has been ruined by drugs. Judging by his record, he is unanswerably correct in that regard.

I have received letters from both end, and his parents. Mr Ho says he is determined to use the time in prison to get away from drugs and obtain some qualification. Both of those things are things which require self-discipline and I think it is probably fair to say that whatever else is lacking in the life of Mr Ho prior to being dealt with in relation to this case, self-discipline has been conspicuously absent. He will need a great deal of self-discipline.

Both his parents and Mr Ho asserts that Mr Ho is taking steps to adopting the Christian faith, which faith has always been a feature of his mother’s life. This may help him towards a better future. A religious faith is something which might help Mr Ho defind the relevant measure of self-discipline which is desperately required. Despite continued repetition of criminal conduct, he has retained the support of his parents when it would perhaps be easy to understand them having given up on him a long time ago.

If he is turning towards Christianity helps with the strength and self-discipline that he will require to do what he have to do then so much the better. This court can only express the hope that at 38, it is time to change to a new direction and it appears that the accused accepts that this time ,has well I am surely, arrived.

Principles of sentencing in relation to dangerous drugs - sentences for possession of dangerous drugs

There are no tariffs for possession of dangerous drugs. The circumstances in which this offense may occur are many and varied.

The drug for sentencing is ‘Ice’. The tariffs for trafficking in quantities in the subject of this charge provide some assistance. The relevant tariff is to be seen in R v Lau Tak Ming [1990] 2 HKLR 370, HKSAR v Abdallah [2009] 2 HKLRD 437 and HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. Had this been an ‘Ice’ trafficking case, the first bands of the often cited tariff in R v Lau Tak Ming would be highly pertinent. That is, for quantities up to 10 grammes of narcotic are between 2 years and 5 years’ imprisonment.

The relevance of the trafficking guidelines for sentence for possession of dangerous drugs was recognized by the Court of Appeal and Secretary for Justice and Ng Wing Yi CAAR 4/2013. The basis of that relevance is that it was held by the Court of Appeal in that case that such guidelines do not themselves dictate a mathematical calibration downwards for possession simpliciter but they illustrate the seriousness with which the drug is now treated. A recognition of the prevalence of the drug and of its dangers to the consumer. Plainly there is a recognition in the authorities which provides guidelines in respect of trafficking of the seriousness of the problem of ‘Ice’ and that problem cannot be ignored.

The overall effect of the authorities reveals that ‘Ice’ is a savagely addictive drug and its addictive nature is cruelly persistent for those who seek to rid themselves of its addiction. The consequences of its ingestion are very serious for the user and the community. There are a multitude of decisions, as to the appropriate sentence for possession of dangerous drugs and I only intend to refer to a selection of them. Probably the best starting point in this regard is HKSAR v Mok Cho Tik [2001] 1 HKC 261. In that case the Court of Appeal was asked to consider a case of possession of 15.7 grammes of ‘Ice’. In that case, Stock JA observed ([2001] 1 HKC 261, 267):

"The starting point for mere possession of a quantity of dangerous drug which a bona fide user would normally have in his possession would be in the range of 12 to 18 months. But that was not “the be all and end all” of the appropriate starting point. "

Stock JA added:

"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."

The court adopted the starting point of 18 months’ imprisonment which was to be enhanced by 12 months for the risk factor inherent in the possession of such a quantity of dangerous drugs. (The origin of this starting point may, perhaps, be seen in HKSAR v Yu Fei CACC 152/2000 which is a fairly extensive review of the decisions on possession of dangerous drugs up to that point.) In HKSAR v Singh CACC 96/2016, the Court of Appeal faced with a sentencing an addict in possession of 6.82 grammes of ‘Ice’. The court considered that a starting point of 15 months was appropriate and enhanced the sentence by 12 months for latent risk. Since at least 1994, the courts of Hong Kong have recognized that in the context of the possession of dangerous drugs, there is a risk of those drugs being disseminated. The phrase used, perhaps inaptly, to describe this latent risk. The matter was discussed in The Queen v Chiu Hung-wong & Anor [1994] 1 HKCLR 184 by Silke VP (at para 22-25). More recently, the latent risk factor is recognized in HKSAR v Minney [2011] 3 HKLRD 556, 4 HKC 136. This enhancement is not merely for a significant quantity of drugs. It is not to be employed as a form of disguise sentencing for trafficking in the drug subject of the charge. In HKSAR v Minney, Fok JA, as he then was, observed ([2011] 3 HKLRD 556, 4 HKC 136, para 28):

"In our opinion, there could be a no objection to a sentence in court taking into account the relevant circumstances of the case. In determining whether the possession of the drugs leading to the conviction are such as to give rise to a real risk, that some of those drugs might end up being redistributed and finding their way into the hands of others apart from the offender’s. That is not to say that the court attributes to the defendant an intention to traffic in the drugs but simply reflects that the fact the quantity and circumstances of their possession are such as to pose a risk to society."

The Court of Appeal in HKSAR v Minney did have two cautionary observations ([2011] 3 HKLRD 556, 4 HKC 136, para 31):

(1) Where a court is considering the enhancement of a sentence on the basis of latent risk, those representing the accused must be notified.

(2) A judge is not to sentence for unproved trafficking. Namely, an unproved actual intention to traffic.

It is self-evident that there cannot be a tariff for latent risk. The authorities recognize the highly, in fact, the specific nature of the assessment which has to be done.

It is recognized in the authorities that a three stage process is necessary. The first involves the identification of a starting point appropriate for the offense. The second stage of that process is the assessment of the latent risk. And the third stage involves an adjustment for any relevant discount.

Application of sentencing principles

Before I set out the relevant -- apply the sentencing principles to the facts, I think it is appropriate to thank counsel for Mr Ho and for the prosecution for their assistance in this case. In different but quite material ways they have made a difference to the outcome of this case.

In my judgment, they have demonstrated how important articulate and well-prepared counsel equipped with a realistic appreciation of the circumstances can be to the just disposition of a sentencing case.

Mr Ho faces a charge of possession of 6.58 grammes of a crystalline solid containing 6.43 grammes of ‘Ice’. It is not plain on the facts admitted by Mr Ho where he obtained the drugs. Nevertheless on the bases of his submissions that he consumed about a gramme per day. He had, in his possession, perhaps, six or seven days’ supply. I have already indicated that I accept Mr Ho is or at least was an ‘Ice’ addict. This is nevertheless a significant quantity of ‘Ice’.

Possession of a dangerous drug remains a serious offense and while as I say, there is no tariff to be found in the previous decisions, significant assistance which would appear to support a sentence of between 12 and 18 months for this kind of quantity. For possession of approximately the same amount of ‘Ice’ in quite similar circumstances, the Court of Appeal in Singh thought a starting point of 12 months was appropriate. It seems to me that this is an appropriate starting point for the present case.

What has troubled me more is:

(1) Whether there is a latent risk to be associated with the possession of the 6.43 grammes of ‘Ice’ and,

(2) If there is -- how to reflect this in sentence.

It seems to me, there is a clear risk of some of these nasty and insidious drug getting into the wrong hands and for a multitude of reasons including the particularly highly addictive nature of this specific drug. It seems to me that a latent risk, even if a small quantity was to find its way into the hands of someone else. These drugs were not found stored in his home but indeed well away from it. I consider the risk to be a significant one. On that premise the issue then remains as to what level of sentence should be imposed to reflect that risk. Many of the authorities in this regard even relatively small quantities of ‘Ice’ talk about enhancing the sentence by as much as 12 months.

There is an argument that it would be wrong in principle to virtually double the sentence by the enhancement. In an attempt to balance this two competing concerns, I consider that the appropriate starting point would be 12 months, and I intend to enhance that by 6 months to reflect the substantial latent risk that I consider to exist. Accordingly the appropriate starting point is 18 months.

Mr Ho has pleaded guilty at the earliest opportunity and is therefore appropriate to accord to him a discount from the starting point appropriate to him. The appropriate discount is a discount of one-third. I have fully taken into account the mitigation advanced by counsel for Mr Ho.

In your case, the order of the court is that you be sentenced to 12 months’ imprisonment.