HKSAR v. LEE CHUN WA

DCCC 151/2020

[2020] HKDC 399

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 151 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to the following charges:-

Charge 1

Trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134 (involving 15.06g of cocaine).

Charge 2

Possession of pipe and equipment fit and intended for the smoking of a dangerous drug, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134 (ie a smoking pipe and one grinder, being fit and intended for smoking cannabis).

Summary of facts

2.  At around 9:33 pm on 20 October 2019, police officers including PW1 on patrol in a police car saw the defendant sitting in the driver’s seat of a private vehicle parked outside MTR Siu Hong Station.  Upon noticing the police car, the defendant started to become nervous. Suspecting that the defendant might be in possession of dangerous drugs, PW1 and his teammates then alighted from the police car and intercepted the defendant.

3.  Upon search of the defendant’s vehicle, the following items were found in the storage space of the driver’s door:-

(a) A black re-sealable plastic bag containing a transparent re-sealable plastic bag containing suspected cocaine (E1);

(b) A purple metal box marked with the word “Extra” containing a transparent re-sealable plastic bag, which was wrapped in a piece of tissue paper, containing suspected cocaine (E2);

(c) A black smoking pipe containing suspected cannabis (E3);

(d) A silver spoon.

4.  Upon further search of the defendant’s vehicle, a round-shaped box in silver colour containing suspected cannabis (E4) was found in the storage space between the driver’s seat and the front passenger’s seat.

5.  Upon body search, the following items were found on the defendant:-

(a) Three mobile phones;

(b) Cash of RMB120;

(c) Cash of HK$2,300.70.

6.  Premises search of the defendant’s home was conducted but yielded negative result.

7.  The accused was arrested and cautioned for Trafficking in Dangerous Drugs.  Under caution, the accused admitted that E1-2 were “coke” which meant cocaine, while E3-4 were cannabis and that all of them were for his own consumption.

8.  The dangerous drugs found in the defendant’s possession were examined by the Government Chemist and confirmed to be a total of 24.61 grammes of a solid containing 15.06 grammes of cocaine and 0.13 grammes of cannabis in herbal form.

9.  It is agreed that the estimated street value of the cocaine was HK$1,450 per gramme while that of cannabis was HK$200 per gramme.  Accordingly, the total value of the cocaine seized in relation the Charge 1 was about HK$21,837 (ie 24.61grammes x HK$1,450) while the total value of the cannabis seized in relation to Charge 2 was about HK$138 (ie 0.69 grammes x HK$200.

Background of the defendant and mitigations

10.  The defendant was aged 22 at the material time.  He was born in Hong Kong and had received education up to Form 2 level.  He worked as a construction worker and a decoration worker earning around HK$30,000 per month at the time of the arrest.  He is single and was residing with his parents in Hong Kong before the current remand.  His father attended the hearing to show support for the defendant.  However, it is trite that personal background does not normally afford any mitigation.

11.  The defendant also has some previous convictions, one of them is related to dangerous drugs (ie Possession of DD) for which he was sentenced to 3 weeks’ imprisonment in 2018.  Whilst his previous record would not make his case more serious or that he would be punished more severely, he does not have the benefit of mitigation for someone who is a first offender.

12.  Counsel for the defendant relied on a number of case authorities and it was agreed that the starting point for Charge 1 should be within the range of 5 to 8 years according to the sentencing guidelines laid down in R v Lau Tak Ming [1990] 2 HKLR 370 for trafficking in the drug of heroin, applicable to cocaine as confirmed in Attorney General v Pedro Nel Rojas [1994] 1 HKC 342 and more recently in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.

13.  The proper starting point for Charge 1 is one of 64.5 months approximately. 

14.  The defendant claimed to the police that the drugs in question were all for self-consumption.  He revised his position and it was submitted on his behalf that a quarter (1/4 instead of “all”) of the cocaine was for his own use.  It was submitted that he has been a drug addict for 3 years and he abused both cocaine and cannabis.  His usual consumption was 0.5 g per day and he intended to keep 1/4 of the cocaine for his own use which would provide him a quantity for a week.

15.  The authorities recognize that self-consumption can be a mitigating factor, see HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and, more recently, in HKSAR v Chow Chun Sang [2012] 2 HKLRD 112.  A further discount of 10 to 25% can be given depending on the circumstances of a particular case.  The notion of latent risk and that even possession of drugs for self-consumption itself may carry a term of imprisonment are also factors to be considered and, as emphasized in Wong Suet Hau (para  34(4)), it “may well offset much of the practical value of the mitigation (of self-consumption) …”. 

16.  Be it also remembered that the amount for self-consumption must be “a significant proportion” of the seized drugs.  Any quantity less than a significant proportion would make no or practically very little difference to the sentence. In Chow Chun Sang, Yeung VP said in the judgment:-

“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 the circumstances, fall somewhere between 10 per cent and 25 per cent of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of drugs involved, the proportion of drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated in the background and criminal record of the defendant.”

17.  In HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572, the Court of Appeal specifically remarked that such a discount would only be available for cases where a significant proportion of the dangerous drugs in which the defendant trafficked was for self-consumption (see para 26). 

18.  That said, there is always the difficulty to quantify the proportion of drugs that would be retained by an accused for his or her own use unless perhaps, for example, the packing of drugs is very telling.  A quarter cannot, however, be said to be insignificant. 

19.  Counsel for both parties were invited to make further submissions on the Court of Appeal decision in HKSAR v Cheung Wai Man [2019] 1 HKLRD 817, in particular, as stated very clearly in the judgment, that “mere assertions by counsel from the bar table, unless agreed or not in dispute or contention, will generally not suffice” to substantiate the mitigation of self-consumption and therefore there is obviously a need to have “credible and reliable information and material, that fully and properly substantiates the proportion of the drugs intended for self-consumption” (see paras 54 and 60). 

20.  Mr Lam for the prosecution submitted that the claim is a mere assertion.  Nevertheless, Mr Lam also agreed that it is open to the sentencing court to look at all materials and information available before the court in order to determine whether to accept the mitigation.  It is acknowledged that testifying in court is only one of the sources of information or evidence for this issue.  I accept that one should not take it lightly when the subject of self-consumption could have a significant impact on the overall sentence.  I hasten to add that in normal circumstances, submissions from the bar table would not take the case far enough to justify a reduction under this heading. 

21.  The relevant factors to be considered by the sentencing court were laid down in the case of Wong Suet Hau and referred to in Cheung Wai Man (see para 51).  Taking into account the quantity of drugs in Charge 1, the proportion claimed (ie 1/4), the previous drugs related record of the defendant, the presence of equipment fit and intended for self-consumption, the explanation of the defendant gave under caution and that the defendant was able to earn an income to afford his drug addiction.  I am prepared to accept this mitigation and I will sentence the defendant on the basis that a quarter of the cocaine was for his own use. 

22.  It was submitted that a 10% reduction would be appropriate. 

23.  For Charge 2, it was remarked in the case of R v Law Sing [1996] 4 HKC 477 that the accepted tariff for such an offence is 3-month after plea.  It would represent a starting point of 4.5 months’ imprisonment.  It was submitted that this starting point was not a straitjacket and the court has certain discretion to pass a sentence according to the circumstances of the case.  It was also submitted that a concurrent sentence is justifiable in the present case.

24.  Having carefully considered, I shall adopt a starting point of 64.5-month as the starting point for Charge 1.  It is reduced by 10% to reflect the mitigation of self-consumption.  The defendant pleaded guilty timely and the sentence would be further reduced by 1/3.  I do not see any further mitigation and therefore for Charge 1, the defendant would be sentenced to a (rounded down) term of 38 months’ imprisonment.

25.  For Charge 2, I adopt a starting point of 4.5 months’ imprisonment and a full 1/3 discount would be given to reflect his guilty plea and therefore the sentence for Charge 2 would become 3 months’ imprisonment.  This offence is of different nature as compared to Charge 1 and I also bear in mind that the defendant should not be sentenced for the possession of cannabis because that is merely relevant to the understanding of the intention for the possession of the equipment in Charge 2.  In these circumstances, I do not see fit to pass a concurrent sentence.  Taking into account the totality principle, I find it appropriate to order a partial concurrent sentence.

26.  I shall order 1 month in Charge 2 to be served consecutively to that of Charge 1, making it a total of 39 months’ imprisonment for the charges.