HKSAR v. LEE CHI WAH

DCCC946/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 946 OF 2011

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Reasons for Sentence

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1.  The defendant had pleaded guilty to two charges.

(i) The 1st charge is trafficking dangerous drugs, namely 3.08 grammes of crystalline solid containing 2.9 grammes of “Ice”.

(ii) The 2nd charge is possession of apparatus fit and intended for the inhalation of a dangerous drug.

Facts of the case

2.  At about 9.30 pm on 29 June 2011, the police executed a search warrant at Room 3A, 1st Floor, 14 Un Chau Street, Shamshuipo.  Upon entering the cubicle, the police found four persons inside and they were:-

(a) the defendant

(b) two females and

(c) one male

3.  Upon a searching the cubicle:-

(a) a packet containing five packets of “Ice” was found inside the water closet of the toilet

(b) while another packets containing six plastic bags was found on the shelf of the toilet

(c) two other small plastic bags containing traces of “Ice” and

(d) an inhaling devices for consuming “Ice” was found on a table in the cubicle.

4.  The accused was arrested of trafficking in dangerous drugs.  Under caution, he said:-

(a) He rented the cubicle for $180 per day.

(b) He occupied the place alone.

(c) He bought the “Ice” for $1,500.

(d) It was contained in one packet. He subdivided them into 13 packets.

(e) The drugs were for his own consumption.

(f) He invited the three persons to take drugs in his cubicle free-of-charge.

(g) The four of them have used the inhaling devices, i.e. a bottle to take “Ice” on the day in question.

(h) Each time he spent $300 to $400 for taking “Ice”.

5.  The defendant has one criminal record in 1996 of which he was fined for $300 and this should be regarded as a spent record.  I, therefore, treat the defendant has a clear record. 

Mitigation

6.  I am told that the defendant is now 48 years old, divorced.  His parents are in their 80’s.  The mitigation was advanced on the basis that most of the “Ice” was for his own consumption and some of them were shared with his friends in the cubicle in Shamshuipo.

7.  According to HKSAR v Wong Suet Hau CACC366/2000, that a number of factors have to be taken into consideration.  At paragraph 34(3), it listed out the factors that the courts need to consider the mitigation of self consumption:

(a) the quantity of drugs and, if known, their value;

(b) the general circumstances, including how the drugs are wrapped, and how many wraps or packets are found;

(c) where the drugs have been discovered, whether at a residential address owned or rented in the trafficker's own name or in someone's name, or whether they were being carried in a public place;

(d) the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;

(e) whether the defendant is an addict or is otherwise accepted to have been an habitual user of the drug in question;

(f) the explanation given by the defendant following arrest;

(g) the defendant's general means and his ability to pay for his drugs otherwise than by trafficking in them; and

(h) the defendant's criminal record, if any, in relation to previous drug offences.

Usually a court will be able to determine the issue from these factors without a Newton hearing.

8.  In the present case, the defendant is a construction site worker earned about $9,000 to $10,000 per month.  He was paid two times a month. He was arrested on 29 June 2011. His last paid was in the middle of June in a sum of $5,000.  At the beginning of June, he received $4,000 as wages, out of that he contributed $2,000 to his parents. 

9.  In his record of interview, he said that he spent about $300 to $400 each time in taking drugs.  I am also told that he took drugs every two days.

10.  From early June to middle of June, he should have spent about $2,400, if he spent $300 per time on drugs, half a month is about 8 times (8 x $300 is $2,400). 

11.  His wages of $4,000 after deducting $2,000 to his parents and $2,400 to finance his drug habit, it left him with nothing, not to mention his daily expenses and his travelling to the construction site to work in order to earn his $5,000 wages, which was paid in middle of the June.  He must be living in debt. 

12.  From middle of June to the time of the arrest, he spent about $2,100 on drugs (7 x $300 = $2,100).  At the time of arrest, he had rented the cubicle for a week for a rent of $180 per day.  He had to pay the rent on daily basis and he already spent $1,260 on rent (7 X $180 = $1,260).  

13.  There is no reasonable explanation for renting the cubicle, save and except that he did not want his parents to know that he took drugs.  However, he claimed he had been taking drugs since January 2011.  When he had no spare money to spend, it was unreasonable for him to spend $180 per day on rent.

14.  His daily expenses on food were about $40 to $50.  Half of the month in June was about $750 ($50 x 15 = $750).

15.  On the day of arrest, he just spent another $1,500 on drugs whereas the street value is $2,180.  Although he had received $5,000 wages in the middle June after deducting all the above expenses, he simply did not have enough money to purchase the drugs in question.  He said that someone would come to collect the $180 rent everyday, but he had no money on him when he was arrested.  He might have paid for the rent that night, but what about the following day?

16.  He said that he took drugs with the other three persons inside the cubicle because he was unhappy as he found out his sister had suffered from colon cancer.  There is no medical report to support this claim and he certainly did not mention it to the police when he was arrested. 

17.  He also claimed he just invited the other three persons to come up to the cubicle to take drug and he provided the “Ice” without charge.  He himself was living in a deficit; he was not running a charitable organisation.  What had the other three persons done to entitle free supply of “Ice”?

18.  I simply do not believe that the drugs were provided free to others. 

19.  Under caution, the defendant said that the drug was purchased in one plastic bag.  When the police found the drugs they were already divided into 13 plastic bags.  There is no need to subdivide them if they were for his own consumption.   

20.  The defendant’s assertion of self consumption was simply beyond explanation.  To this end, I rejected his claim for self consumption. 

21.  According to the case of Ching Kwok Hung [1991] 2 HKLR 125, which has laid down the guideline for trafficking in dangerous drugs of ice , for the quantity up to 10 grammes, the sentencing bracket is between 3 to 7 years.

22.  As the quantity in Charge 1 is 2.9 grammes, I adopted a starting point of 4 years and reduced to 2 years and 8 months, as to the 2nd charge, I adopted a starting point of 3 months and reduced to 2 months, both sentences to be run concurrently.