HKSAR v. CHAN KEE LUNG

DCCC 939/2018

[2019] HKDC 421

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 939 OF 2018

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REASONS FOR SENTENCE

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1.  Chan Kee Lung (D1) pleaded guilty before me to one charge of Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The particulars are that he and Lam Man Kit (D2), on 13 July 2018, outside Ground Floor, No 75A Nam Cheong Street, Sham Shui Po, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 27.70 grammes of a mixture containing 18.60 grammes of heroin hydrochloride.

3.  The facts admitted by D1 may be summarized as follows.

4.  On 13 July 2018, at about half-past-nine in the evening, on Nam Cheong Street, D1 and D2 on sight of patrolling police officers instantly turned around and paced towards Tung Chau Street.  They stopped and boarded a taxi through the left rear door.  D1 was seated behind the driver.  The driver was told to drive to Tsui Ping Estate.

5.  The officers stopped the taxi at the location particularized in the charge after it had moved for 2 seconds.  That time, D1 was holding a packet of dangerous drug as particularized in the charge in his right hand which was placed on his right thigh.  D2 glanced at the police and touched D1 once with his right thigh.  D1 instantly bowed forward and dropped the packet onto the floor, right behind the driver’s seat.

6.  D1 and D2 were brought out of the taxi.  Police seized the packet from the taxi floor.  Under caution, D1 said it was Ah Kit who gave him the packet of No 4 for delivery for a reward of $1,000.

7.  Upon search, on D1 were found a mobile phone, a phone card, and cash of $57.50; on D2 were found another mobile phone, 2 other phone cards, 3 notebooks, cash of $3,810.20 and 4 keys.

8.  The estimated street value of the dangerous drug was $24,015.90.

9.  D1 admits that he and D2 were in possession of the drug for the purpose of trafficking.

Criminal record

10.  The agreed criminal record shows that D1 has 23 previous convictions accumulated through 21 court appearances since 1990.  All but 2 of those convictions were dangerous drug related, among which 7 were for trafficking in, or for activities involving the sale of, dangerous drug.  His last conviction was in May 2017 for possession of a dangerous drug.

Antecedents

11.  The antecedents statement is agreed.  D1 is aged 63 (62 at the time of offence), having been born in the Mainland.  He has achieved primary 6 education.  He had been a construction worker.  He was last discharged from prison in October 2017.  He is a divorced person.  Before arrest, he was living alone in a public housing flat in Wong Tai Sin.

Mitigation

12.  Mr Ernest Yuen of counsel assigned by the Director of Legal Aid mitigated on D1’s behalf.

13.  D1 came to Hong Kong in the 1960s and had received primary 6 education. He was unemployed before arrest.  He relied on $3,400 CSSA payments and monthly financial support from his elder sister for a living.  D1 had a divorce in 2012.  He has 2 sons and a daughter the latter of whom had emigrated overseas. D1 had been close with his elder sister.  D1 has been taking drugs since his 20s.  He had been sent to DATC 5 times the last of which was in 2007.

14.  Mr Yuen relied on the long drug-related record of and instructions taken from D1 to submit that about half of the drug in this case was for D1’s own consumption, with the rest to be shared with friends.  He asked for a special sentencing discount on the authority of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1116 (official English translation at 1121).  Mr Yuen submitted that despite the high monetary value of the drug involved, D1 could afford it because of regular financial support from his elder sister, and also because round about the time of the offence, CSSA provided double-payments as a result of a special arrangement under the budget speech.  Mr Yuen also handed up a copy memo from LCK Reception Centre which suggested that D1 was opiate-tested positive on admission.

15.  Mr Yuen relied on the authority of R v Lau Tak Ming and others [1990] 2 HKLR 370 for the sentencing tariffs and suggested a starting point of 5 years’ imprisonment.

16.  Lastly, Mr Yuen asked for a 1/3 discount off the starting point because of the plea.

17.  On enquiry from the court, Mr Yuen submitted that the Ah Kit spoken of by D1 under caution was not D2; he also submitted that the cash of $1,000 purportedly promised by Ah Kit had not been paid.

18.  When asked by the court whether D1 would give evidence in support of the claim of self-consumption, Mr Yuen told the court in no unclear terms that D1 would not give evidence.

19.  When asked if he has anything to say in relation to the aggravating factor of D1 acting in concert with D2, Mr Yuen sought to seek leave for withdrawing that part of para 7 of the Re-amended Summary of Facts dealing with D2’s involvement.

20.  Mr Yuen has nothing to say in relation to the aggravating factor of a persistent re-offender.

Sentence

21.  I have considered the authorities cited by and the mitigation submissions made by Mr Yuen.

22.  I refuse the request for special discount on the basis of self-consumption of a significant proportion of the drug as there is no evidence coming from D1 to support it.

23.  I refused D1 leave to withdraw that part of para 7 of the Re-amended Summary of Facts dealing with D2’s involvement in the offence, for the simple reason that all along it was always the defence’s position that D1 would agree the entire facts; indeed D1 had done so unequivocally right after plea was taken.

24.  Trafficking in a dangerous drug is a serious offence for which sentencing tariffs have seen set by the Court of Appeal.  For trafficking in 10 to 50 grammes of pure heroin, the sentence should be between 5 and 8 years’ imprisonment.

25.  In the case of D1, I take as the initial starting point 5 years and 6 months.  For the dual aggravating factors of his being a persistent re-offender and his acting in concert with D2, I shall add on a further period of 6 months (see, for example, HKSAR v Lau Tsz Ho [2015] 1 HKC 491 in respect of the first aggravating factor).  Because of his plea, I shall reduce the final starting point by 1/3 to 4 years.

26.  There are no other mitigating factors of sufficient weight to warrant a further discount.  In particular, I must guard against the temptation to impose a lighter sentence because of D1’s old age, for it has been said in Lau Tak Ming (supra) at 386G that “[d]rug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of … the aged in the carrying out of their nefarious trade”.

(D1, please stand)

27.  The sentence for D1 is therefore 4 years’ imprisonment.