HKSAR v. YIP CHE MAN AND ANOTHER

DCCC 256/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 256 OF 2017

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REASONS FOR SENTENCE

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1.  D1 pleaded guilty to Charge 1 of trafficking dangerous drugs and Charge 2 of possession of dangerous drugs while D2 pleaded guilty to Charge 3 of trafficking dangerous drugs.

Summary of facts

2.  On 15 December 2016, the police executed a search warrant on the 6^th Floor of 110-112 Queen’s Road East in Wanchai.  D1 was inside Room 2 and D2 in Room 3.

Body search

3.  Nothing illegal was found on D1. 

4.  D2: there was a plastic packet containing 0.25 grammes of heroin from her front left pants pocket.

Search on Room 2 (D1)

5.  On the table: -

(a) a betting slip containing 0.09 grammes of heroin;

(b) a transparent plastic box containing 68 packets containing 6.41 grammes of heroin;

(c) a yellow plastic bottle containing 78 packets containing 6.94 grammes of heroin;

(d) a transparent plastic box containing 32 packets containing 7.26 grammes of cocaine;

(e) a transparent resalable plastic bag containing six tablets, 0.02 grammes of methadone;

(f) four tablets, 0.05 gramme of midazolam;

(g) a plastic box containing some plastic sheets;

(h) a plastic box with green cover containing 11 empty transparent resealable plastic bags;

(i) two lighters;

(j) one glass bottle containing 5 millilitres of a liquid containing traces of methamphetamine;

(k) another glass bottle containing 28 millilitres of a liquid containing traces of cocaine.

At the lower deck of the bunk bed inside Room 2:-

(a) two notebooks;

(b) 9 rows of cash with names of Ha Chai, Tai An and Kai Ying. The amount in each roll was from $700 to $4,200. Total was $22,170.

Search in Room 3

6.  On the table inside Room 3:-

(a) a plastic packet containing 0.52 grammes of heroin;

(b) another plastic packet containing 0.19 gramme of cocaine;

(c) a lighter;

(d) an electronic scale;

(e) a pair of scissors;

(f) a plastic bottle inserted with a glass tube containing 50 millilitres containing traces of cocaine;

(g) a paper box containing a pile of plastic sheets and 35 empty transparent resealable plastic bags.

7.  Inside the handbag placed on the floor next to the said table inside Room 3:-

(a) a piece of tissue containing two plastic bags, one plastic wrapping and a total 8.20 grammes of heroin;

(b) a mobile phone.

Arrest and Caution

8.  Both defendants were arrested for trafficking in dangerous drugs.

9.  Under caution, D1 stated that all the “stuff” on the said table inside Room 2 belonged to him.

10.  Under caution, D2 stated that all the “stuff” was for her own consumption.

Cautioned Interview of D1

(a) He said he lived in Room 2 for about four months.

(b) He would sell the heroin found in Room 2 to others at the price of $120 to $140 per packet.

(c) He bought the cocaine from “Ah Hung” at $280 per packet and resell to others at $350 per packet.

(d) The notebook contained the business records of his drugs-trafficking business.

(e) The rolls of money were the proceeds of his drug-trafficking activities.

(f) He sold the dangerous drugs for Ah Hung and he would receive reward from Ah Hung for selling dangerous drugs.

Cautioned Interview of D2

11.  She said the dangerous drugs in Room 3 belonged to her.  She bought the subject dangerous drugs at the price of $3,000. 

Street Value

12.  The estimate street value of heroin and cocaine found in Room 2 was $ 21,499.86.

13.  And the estimate street value of heroin and cocaine found on D2 as well as inside Room 3 was $9,075.92.

Previous conviction

14.  D1: he has 31 previous, 22 related to possession of dangerous drugs, three for possession for trafficking dangerous drugs (under the old law) and two convictions for trafficking dangerous drugs, two drugs convictions without record in 1978 and 1987.  His last conviction for possession of dangerous drugs was in 2003.

15.  D2: 11 previous, one for possession of dangerous drugs and three other convictions in 1979 and 1987, sentenced to DATC without convictions being recorded.

Mitigation for D1

16.  He is now 65.  He became a drug addict during his young age as a sailor.  He knows that drugs have ruined his life.  He spent his life in and out of prison. 

17.  In 1993, his wife passed away.

18.  D1 worked as a cleaning worker for $8,000 per month.  He is a regular visitor to the methadone center.

19.  In his mitigating letter, the defendant said that he tried to kick off drug habit since 2003 but without success.  He had not seen his daughter since she was 14.  He now suffers from a lung problem and has breathing difficulty. He could not work.  He committed the present offence because of financial difficulties.  He is now remorseful. 

20.  He claimed that 20 % of the heroin is for his own use.  He consumed 1.5 to 2.5 grammes of heroin per day.

Mitigation of D2

21.  She is now 61.  She is single.  She has a drug history of 40 years.  She was a part-time cleaner, earned $150 per day.  She receives a monthly CSSA $3,000 per month.

22.  40% of the heroin being seized by the police were for her own consumption.  She paid a total of $3,000 to the supplier.

Sentence

23.  The law for trafficking dangerous drug is well-settled.  For both heroin and cocaine, the sentencing guideline is Lau Tak Ming [1990] 2 HKLR 370.  For quantity up to 10 grammes: 2 to 5 years’ imprisonment. Between 10 to 50 grammes: 5 to 8 years.

Self-consumption

24.  Mitigation advanced on behalf of both defendants was that part of the heroin was for their respective consumption.  D1 said 20% while D2 said 40%.

25.  If this court is satisfied that any part of the heroin is for both or either one of the defendants for self-consumption, I have to take it into account and take a lower starting point for sentence.

26.  When deciding the issue of self-consumption, I have regard to the case of Wong Suet Hau CACC 366/2000.

D1

27.  Since 1976 to 2003, D1 had numerous convictions related to drugs offences.  But since 2003, D1 stays free.  It is not one year or a few years. It has been 13 years.  

28.  Further, what he said under caution had nothing to do with self-consumption.  He said that he sold the drugs for Ah Hung and he received reward from him.  He sold the drugs to others between $120 to $140 per packet.  Altogether there were 146 packets.  There were many rolls of money being found in Room 2.  Each roll of cash stated clearly the name, the amount and the word of “gold”.  (The total amount of what was found was $22,170.)

29.  The street value of the heroin found in Room 2 was about $21,500.  If 20% of the drugs were for his own consumption, that means at least $4,000 was being provided by Ah Hung to feed the defendant’s drug habit.  That was a great deal of reward for selling those drugs for Ah Hung while the drugs he admitted in possession in Charge 2 did not contain any amount of heroin. 

30.  Against this background, I do not accept the assertion by D1 that 20% was for his own consumption.

31.  As to D2, she claimed 40% of the heroin is for her own use. 

32.  Under caution, she said that they were all for her own consumption. Clearly, she has shifted her stance now.

33.  The street value of the drugs was about $9,000.

34.  She claimed she bought the drug 8.97 grammes of heroin from the supplier for $3,000.  That means 4.5 grammes would be about $1,500.

35.  She said 4 grammes would last her for about eight days as she took 0.5 grammes a day.  That means she paid about $1,200 for the 4 grammes of drugs for herself.

36.  She received CSSA $3,000 per month.  She worked part-time to earn $150 per day.  In a month, she made between $500 to $900.  A total income of about $4,000.

37.  The question to ask: whether she had that financial ability to pay the supplier?

38.  Applying 4 grammes for eight days’ equation, in a month, she needs about 14 grammes.

39.  Likewise, for 4 grammes cost $1,200, 14 grammes would cost her $4,200 per month just to finance her drug habit.

40.  She received CSSA $3,000 on the first day of the month.  At the time of arrest, it was on 15 December 2016.

41.  It is clear to me that she did not have that financial ability to buy the drug for $3,000, bearing in mind the street value is $9,000.  It is unbelievable that the drugs supplier would sell those drugs to her in such a substantial discount. 

42.  To this end, taking into account of the above factors, I refused to accept that any part of the heroin was for her own use.

Sentence

D1

43.  Charge 1 contains 7.26 grammes of cocaine and 13.44 grammes of heroin.

44.  Putting the two drugs together, it was 20.7 grammes.  The sentence is one of 6 years, reduced to 4 years because of his guilty plea.

45.  As to Charge 2, the drugs involved were 0.02 grammes of methadone, 0.05 grammes of midazolam, traces of cocaine and traces of methamphetamine. They were altogether four different types of drugs albeit of a very small amount.

46.  I adopt a starting point of 9 months reduced to 6 months.

47.  Both sentence in Charge 1 and 2 to run concurrently.

D2

48.  As to Charge 3, the drugs were traces of cocaine, 0.19 gramme of cocaine and 8.97 grammes of heroin and 0.01 gramme of a mixture containing heroin.

49.  Putting aside the traces of cocaine and 0.01 grammes of a mixture containing heroin, which have very little effect on the overall sentence, the total amount of drugs was 9.16 grammes.

50.  Applying the guideline of Lau Tak Ming, the sentence is 4 years and 6 months reduced to 36 months because of the defendant’s guilty plea.