HKSAR v. LAU KAM HUNG

HCCC 114/2024

[2025] HKCFI 470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 114 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded not guilty to one count of trafficking in dangerous drugs before Magistrate Ms. Stephanie Tsui and was committed, on 11 April 2024, to the Court of First Instance for trial.

2.  Trial dates were fixed on 21 August 2024, commencing on 28 January 2026.

3.  On 20 September 2024, the defendant’s solicitors wrote to inform the court that the defendant will plead guilty to the count.

4.  The defendant did plead guilty on 22 January 2025, admitted to the summary of facts, and was duly convicted.

5.  Particulars of the offence are that the defendant on 2 April 2022, at room 2110, 21^st floor, Hoi Yan House, Hoi Fu Court, No.2 Hoi Ting Road, Tai Kok Tsui, Kowloon, unlawfully trafficked in dangerous drugs, namely, 17.3g of a crystalline solid containing 17.0g of methamphetamine hydrochloride (commonly known as “ice”)  and 14.40g of cannabis in herbal form.

SUMMARY OF FACTS

6.  Police officers conducted an anti-narcotics operation at Hoi Yan House, Hoi Fu Court, Mong Kok in the evening of 2 April 2022, laying ambush at a staircase on the 21^st floor at around 8:30pm.  Hoi Yan House is a public housing estate, with the defendant as the registered tenant of flat 2110.

7.  At around 9:20pm, a male and a female appeared on the 21^st floor and rang the doorbell of flat 2110 (“the flat”).  A female later known as HON Yin-hiu opened the door and gate of the flat, whereupon the police immediately intercepted HON and entered the flat, and found the defendant lying in a bed.

8.  The flat was around 150 square feet in size, with a kitchen and a bathroom but no bedroom.  Upon search, from a metal box on a table, (a)  4 resealable plastic bags containing a total of 17.3g of a crystalline solid containing 17.0g of methamphetamine hydrochloride (E4), (b)  An electronic scale, (c)  a resealable plastic bag containing multiple smaller resealable plastic bags, and (d)  2 glass bottles each with a straw attached thereto (which resembled pipes for smoking of drugs)  were found.

9.  3 re-sealable plastic bags were found from a pouch on the bedside desk, with 3 resealable plastic bags containing 14.4 grammes of cannabis in herbal form (E9)  inside.

10.  The defendant was arrested for the offence of “trafficking in dangerous drugs” in respect of the said drugs.  The defendant claimed under caution that the “pork” (colloquial term for methamphetamine)  and “weed” (colloquial term for cannabis)  were for his own consumption, and he would sometimes share them with his friends.

11.  In April 2022, the average retail price for methamphetamine was HK$572 per gramme, whereas the average retail price for herbal cannabis was HK$182 per gramme.  E4 could have been sold at street level to drug abusers for HK$9,895.60, whereas E9 could have been sold for HK$2,621.

12.  By his admission to the summary of facts read out in court, the defendant admitted that he was in possession of the ‘ice’ and ‘weed’ for the purpose of trafficking at the material time.

PREVIOUS CONVICTIONS

13.  The defendant has 19 convictions from 6 court appearances.  He was convicted in 1979 for 7 charges of theft, together with one of rape and one of robbery, and sentenced to a total of 9 years imprisonment.  His next convictions were for assault with intent to rob, indecent assault, and rape, and he was sentenced to a total of 12 years’ imprisonment.  

14.  In 1996, he was convicted for managing a vice establishment and sentenced to 6 months’ imprisonment, suspended for 3 years.

15.  The next set of convictions were in July 2008 for assault occasioning actual bodily harm, criminal intimidation, and assaulting a police officer.  

16.  His last conviction was on 2 October 2019, when he was sentenced to 18 months’ imprisonment for possession of dangerous drugs.  His last release date was 1 November 2019.

BACKGROUND AND MITIGATION

17.  The defendant was born in Guangzhou in July 1956 and is 68.  He relocated to Hong Kong when he was 21.  The difficulties he faced as a young immigrant contributed to him turning to gambling, which led to debts, which in turn resulted in his commission of the previous offences.

18.  The defendant contributes about RMB800 towards his daughter’s living expenses, who is 18 years old and studying nursing in Guangzhou.

19.  The defendant was working as a construction site worker in 2015, earning around $30,000, when he suffered a hand injury forcing him to stop.  His health had since deteriorated and had to rely on CSSA of $5,300 per month for his daily and medical expenses since 2017.

20.  The defendant suffers from cardiac disease, diabetes, kidney problems, hernia and polyps.  He had undergone angioplasty procedure during his remand.  He is constantly exhausted from frequent night time urination, and is in pain most of the time.  

21.  Mr. Yu informed the court that it was the pain that drove the defendant to resort to dangerous drugs, which he sometimes shared with others.  He has since quit his drug use and plans to be reunited with his daughter in the mainland upon release, and to never return to Hong Kong.  

22.  Mr. Yu mentioned in his written submissions that the ‘ice’ and the cannabis were bought for the defendant’s self-consumption for $3,000 and $500 respectively, saying that “a great proportion of the drugs involved were intended for the defendant’s self-consumption and he shall be entitled to an appropriate discount in sentencing”, relying on the case of HKSAR v Cheung Wai Man [2019] 1 HKLRD 817 for a 10% to 25% discount.

23.  However, since the defendant had admitted explicitly in the summary of facts that he was in possession of the ‘ice’ and ‘weed’ for the purpose of trafficking at the material time, I reminded Mr. Yu as such and invited him to take instructions and to advise the defendant if he would like to enter the witness box to provide some further information to fully and properly substantiate the proportion of the drugs intended for self-consumption, and to inform the defendant of the possible consequences.

24.  Upon taking instructions, Mr. Yu told the court that he had explained to the defendant his rights and had given him advice, and the defendant had elected not to enter the witness box.

25.  Nevertheless, since this ground of mitigation had not been withdrawn, I proceeded to consider whether the claim that 80% of the drugs in the Flat was for the defendant’s self-consumption as submitted by Mr. Yu can be substantiated.

26.  The presence of the electronic scale and the multiple re-sealable plastic bags is cogent evidence to support the defendant’s admission that he was in possession of all the drugs found in the Flat that day for the purpose of trafficking.  Mr. Yu says the electronic scale was so that the defendant could check the weight of the drugs he bought for his consumption, and the multiple re-sealable plastic bags were left over bags from his previous purchases.  I asked to see a photo of the plastic bags and mentioned to Mr. Yu that the photos show that they are brand new plastic bags and that if they were previously used to contain drugs, there would have been traces in some and the police would have sent them for examination, and invited Mr. Yu to address me on this observation.  Mr. Yu, very fairly, said he had nothing to say further on this.  

27.  It may very well be true that the defendant was a drug abuser, and that urine tests showed that he might have taken some drugs before his arrest.  But then the positive test would also prove that the drugs he had consumed before his arrest was not the drugs found by the police in the Flat, again supporting his admission to the summary of facts that all the drugs in the Flat were in his possession for the purpose of trafficking.

28.  Having considered the facts and circumstances, I find that the defendant should not be granted any reduction in sentence on the basis of a significant proportion of the dangerous drugs being for his self-consumption.

SENTENCING CONSIDERATIONS

29.  The maximum sentence on conviction upon indictment for trafficking in dangerous drugs is that of life imprisonment and a fine of $5 million.  

30.  Relative to the narcotic ‘ice’, the sentence for trafficking in the quantity of herbal cannabis in this case is insignificant and would not have any meaningful impact on the notional starting point from the perspective of quantity.  As such, I will ignore the herbal cannabis when deciding on the notional starting point.  

31.  Having said that, it is trite law that trafficking in more than one type of dangerous drugs is an aggravating factor, as such, despite the small quantity, I will still take into consideration of this factor and enhance the sentence accordingly, bearing in mind the small quantity of herbal cannabis involved.

APPLYING HERRY JANE YUSUPH

32.  The guidelines and 6-step approach as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[1]are applied as follows.

Step 1: The applicable guideline tariff bands

33.  For 17g of “ice”, the applicable guideline tariff band is that of 7 to 11 years’ imprisonment.

Step 2: The defendant’s role and culpability

34.  Based on the summary of facts, the only reasonable inference is that the defendant was in possession of the dangerous drugs as a storekeeper, and he is to be sentenced as such.  

Step 3: The relevant band within the guidelines

35.  Based on my finding of the defendant’s role and culpability, I adopt a starting point of 7 years and 6 months, being the arithmetical application of the tariff.

Step 4: Aggravating factors

36.  The defendant has a number of convictions for very serious offences.  Although this is his first conviction for trafficking in dangerous drugs, and his only other drug related conviction was in 2019 for simple possession, I find that I must place more weight on the need to deter the defendant from committing further offences in the future when sentencing.  As such, I will enhance his sentence by 6 months on him being a persistent offender, taking the starting point up to 8 years’ imprisonment.  

37.  Furthermore, as mentioned above, the fact that the defendant was trafficking in more than one type of dangerous drugs is an aggravating factor.  Given the relatively small quantity of herbal cannabis involved, I will enhance his sentence on this basis by 1 month, taking the total to 8 years and 1 month.  

Step 5: Mitigating factors

38.  I find that there are no mitigating factors that would justify a reduction in sentence apart from the defendant’s plea of guilty.

39.  According to the case of HKSAR v Ngo Van Nam[2], subject to the overriding sentencing discretion of the sentencing judge, a defendant who indicated a plea of guilty after the fixing of trial dates but before the first day of trial should be granted a 25% to 20% discount.

40.  Here the defendant indicated through his solicitors his intention to plead guilty about 1 month after the trial dates were fixed.  In fact, the defendant himself wrote to the court about his intention to plead guilty on 4 September 2024.  Either way, the indication was about 17 months from the first day of trial, and about 14 days after the trial dates were fixed.  I find that the defendant should be granted a discount of about 25% for his plea, resulting in a post discount sentence of 73 months’ imprisonment.  

Step 6: Totality

41.  From the perspective of the totality sentencing principle, I find that in the circumstances, the final sentence is a fair, just and balanced sentence.  

FINAL SENTENCE

42.  The defendant is sentenced to 6 years 1 month’s imprisonment.