HKSAR v. LIU KA SHING

DCCC 898/2022

[2023] HKDC 1296

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 898 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 (1^st charge), and a charge of possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134 (2^nd charge). He also agreed to the Summary of Facts and is so convicted.

Facts

2.  On 13 June 2022 at around 2035 hours, PC12359 (“PW1”)  saw the defendant approach a fire hose reel recess near Staircase A of 4^th Floor of Tak Shing House (“the Location”), he pulled open the door of the recess and climbed onto it. PW1 saw the defendant with his right hand took out a transparent plastic bag from his right trouser pocket and raised his hand. The defendant then lowered his right hand without holding any plastic bag. He repeated the above motion for two more times.

3.  Afterwards, the defendant climbed out of the fire hose reel recess and was immediately intercepted by police who found 3 transparent resealable plastic bags inside his right trouser pocket (‘Exhibit 1”). Police also found 3 transparent resealable plastic bags inside the cracks of the ceiling wall of the fire hose reel recess (“Exhibits 2 to 4”). 2 mobile phones, HK$4,500 and a car key was also found on the defendant.

4.  Government chemist confirmed: -

(a)  The 3 transparent resealable plastic bags found inside the wall cracks as: -

(i)  1 transparent resealable plastic bag containing 18 transparent resealable plastic bags containing a total of 5.77 grammes of a solid containing 5.02 grammes of cocaine (“Exhibit 2”);

(ii)  1 transparent resealable plastic bag containing 25 transparent resealable plastic bags containing a total of 7.34 grammes of a solid containing 6.19 grammes of cocaine (“Exhibit 3”); and

(iii)  1 transparent resealable plastic bag containing 36 transparent resealable plastic bags containing a total of 11.2 grammes of a solid containing 9.73 grammes of cocaine (“Exhibit 4”).

(b)  The 3 transparent resealable plastic bags found inside his right trouser pocket containing a total of 0.99 grammes of a solid containing 0.85 grammes of cocaine (“Exhibit 1”).

5.  The estimated street value of the seized cocaine was around HK$898.92 (for Exhibit 1)  and HK$22,073.48 (for Exhibits 2 to 4).

6.  The defendant was later arrested for trafficking in a dangerous drug. Under caution, he said all the drugs was for his own consumption.

7.  At all material times, the defendant had in possession of Exhibit 1 (Charge 2)  and he was in possession at the Location Exhibits 2 to 4 for the purpose of unlawful trafficking (Charge 1).

Criminal Record

8.  The defendant has 2 previous records, all similar to the 1^st charge. He was last released from prison on 19 November 2020, ie 19 months before the commission of the present offence.

Mitigation

9.  The defendant is aged 31, single and living with his mother. He was born in mainland China and came to Hong Kong where he received his education up to Form 3. He used to be a freelance decoration worker, but he lost his job during COVID-19.

10.  Defence counsel submitted that the defendant was lauded as a good employee. His mother has long been plagued by cancer and other chronic illnesses, and was unable to work, the defendant therefore needs to cover all household expenses.

11.  It was said that the defendant wanted to earn more money in order to improve his mother’s livelihood and provide better and well-suited treatment to her. It was said that the defendant has been seeking for a job for half a year before the commission of the present offence, but to no avail. He therefore made the silly decision abusing narcotics and committing drug trafficking.

12.  It was said that urine test performed on the defendant shortly after his arrest indicated he was a cocaine abuser. It was also said that part of the drugs was for his own consumption.

13.  Defence counsel handed to court 3 mitigation letters written by the defendant, his mother and his former employer for court’s reference. Medical records and treatment documents of defendant’s mother were also submitted.

14.  It was said that the defendant regretted what he has done and he asked this court for leniency and to give him a shorter sentence, so that he could return home earlier and look after his mother.

Discussion

1^st charge

15.  Before sentencing, this court has carefully considered mitigation by defence counsel as well as mitigation letters submitted.

16.  The maximum sentence on conviction of this charge upon indictment is a fine of HK$5 million and imprisonment for life.

17.  For trafficking of cocaine in this case, following the authority of Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 in adopting the guideline in R v Lau Tak Ming [1990] 2 HKLR 370, the sentencing starting point is 69 months and 24 days’ imprisonment.

18.  The defendant had 2 previous similar convictions. He committed the present offence 19 months after his release from prison. He is no doubt a persistent offender which aggravates his culpability in this case. His sentencing starting point is therefore enhanced by 6 months to 75 months and 24 days’ imprisonment.

19.  This offence is a very serious offence and personal background is seldom a mitigating factor. The fact the defendant committed the offence because he was in need of money for better medical care for his mother is not a valid mitigating factor.

20.  Considering the mitigation done on his behalf, the most valid mitigating factor is obviously his guilty plea, for which he is entitled to full one-third sentencing discount. His sentence is therefore discounted to 50 months and 16 days’ imprisonment.

21.  Urine test performed on the defendant confirmed he was a cocaine user himself. Defence counsel submitted that part of the drugs was for his own consumption. In view of the urine test report, this court is willing to accept that he was a cocaine user and that a very small quantity of drugs seized would be consumed by him. For this reason, the court is willing to exercise its discretion to further discount his sentence by 1 month and 16 days’ imprisonment.

22.  Mitigation letters indicate the defendant’s genuine remorse, mother’s and friend’s support for him in his rehabilitation. However, authorities said the defendant’s remorse had already been subsumed in the one-third sentencing discount.

23.  In any event, this is the third trafficking in dangerous drugs conviction of the defendant. He has just been released from prison 19 months ago for the same sort of offence. His remorse is therefore very limited.

24.  Accordingly, the defendant is sentenced to 49 months’ imprisonment for this offence.

2^nd charge

25.  The maximum sentence on conviction upon indictment for this charge is a fine of HK$1 million and imprisonment for 7 years, subject to section 54A of the Dangerous Drugs Ordinance.

26.  When sentencing cases of simple possession of dangerous drugs, two factors are of particular importance, ie the quantity of drugs involved and the risk that the dangerous drugs would get into the hands of others by access or distribution, ie latent risk.

27.  In the case of HKSAR v Wong Wai Wah, CACC 181/2017, the Court of Appeal referred to the case of HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405, where the Court of Appeal held that the following three-step approach should be adopted when determining an appropriate sentence for an offender who is a bona fide user and convicted of simple possession of dangerous drug.

28.  For step 1, the judge should normally determine a sentence starting point between 12 to 18 months’ imprisonment. For step 2, the sentencing starting point is increased or enhanced to take account of the latent risk factor to arrive at the total sentence. For step 3, the total sentence is then adjusted to take account of the mitigating factors such as a guilty plea.

29.  In the case here, the drug was 0.85 grammes of cocaine. This court considers that:

(a)  The quantity of the cocaine;

(b)  The defendant is a cocaine user; and

(c)  He was unemployed at the time and had no other source of income.

30.  The court considers there is a real risk of dissipation of drugs in the 2^nd charge. Nevertheless, considering the relatively small quantity of drugs involved, the court is not going to enhance the sentence starting point regarding the latent risk. The court will therefore adopt a sentencing starting point of 12 months’ imprisonment for the 2^nd charge.

31.  The defendant has 2 previous trafficking in dangerous drugs convictions. The court however, is not going to enhance the sentence starting point for this offence. He is entitled to full one-third sentencing discount by reason of his guilty plea, bringing the sentence of the 2^nd charge to 8 months’ imprisonment.

32.  The 2^nd charge offence was committed at the same time of the 1^st charge offence. The 2 offences relate to cocaine, but the nature of these offences are different. In my view, commission of the 2^nd charge offence adds very little to the culpability of the defendant in the 1^st charge.

33.  Considering the totality principle and the culpability of the defendant in the whole case, the court considers that the total sentence of 49 months is just and proportionate sentence for the defendant in this case. The court therefore orders the sentence of the 2^nd charge is to run totally concurrent with the sentence of the 1^st charge.

34.  The defendant is therefore sentenced to a total of 49 months’ imprisonment in this case.