HKSAR v. LUI CHI FAI, MICHAEL

DCCC928/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 928 OF 2013

--------------------

-------------------------------------

REASONS FOR SENTENCE

-------------------------------------

1.  The defendant appeared before me this afternoon and pleaded guilty to two counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The two offences happened on the same date on 26 July 2013 and they all took place in the vicinity of Un Chau Estate, a public housing estate situated in Sham Shui Po, Kowloon.

3.  The defendant was arrested outside a building in Un Chau Estate and had the drugs in the 1st count on his person.  The drugs in the 2nd count were later found by the police inside a metal box which was found at the defendant’s home in a nearby building within the same housing estate.  The total quantity of the dangerous drug in count 1 was 2.44 grammes of cocaine, whereas in count 2, the total quantity of dangerous drugs was 22.45 grammes of cocaine and 4.37 grammes of methamphetamine hydrochloride, also commonly known as ICE.  The total drugs has an estimated street value of HK$31,965.  All the drugs found were contained in 22 different plastic bags.  Also there were three plastic bags containing a total of 285 empty plastic bags which was found inside the metal box. 

4.  The defendant admitted under caution that he purchased those dangerous drugs from an unknown person in Mongkok for the price of HK$12,000.  On the date of arrest, he was leaving his residence and was on the way to see a friend before he was arrested.  It is clear and indeed the defendant also admitted that he possessed all the dangerous drugs for the purpose of trafficking.

Criminal records and the background of the defendant

5.  Defendant is aged 35.  In the past, he had seven conviction records out of which three were possession of dangerous drugs.  They all took place in 2010, 2011 and 2012.  His last conviction was in relation to possession of dangerous drugs for which he was sentenced in the Magistracy for 8 months’ imprisonment.  He was discharged from the prison in May 2013 which means that he committed this offence only two months after he was released.

6.  Defendant is still single and he lives with his family in Un Chau Estate and he was a delivery worker before this offence.

Mitigation

7.  In mitigation, Mr. Tse, the defendant’s solicitor, informed the court that the chief mitigation is of course the defendant’s plea of guilty and his remorse. He said the defendant acknowledged that trafficking in dangerous drugs is a serious offence but he reiterated that this is still the first time the defendant was convicted of the more serious trafficking offence.  Taking into account that there are two counts of trafficking in dangerous drugs in this case but they all took place on the same date and indeed in the same public housing estate, Mr Tse urged the court to impose a concurrent sentence to reflect the overall criminality of the matter.

Sentencing considerations

8.  Before I came to sentence the defendant I have carefully considered the authorities of the Court of Appeal, the mitigation which is put forward by Mr Tse as well as the criminal records and the background of the defendant.  In this case, I am called upon to deal with two different types of dangerous drugs, namely cocaine and ICE.  In HKSAR v Ko Ka Hing [2009] 4 HKLRD 856, the Court of Appeal had identified two different sentencing approaches when a defendant had trafficked in more than one type of dangerous drug:-

“ (a) The first approach is the individual approach where an appropriate starting point is determined for each type of the dangerous drugs and they are then combined into an overall starting point prior to any discount.

(b) The second approach is the combined approach where a starting point is determined for the most serious type of dangerous drugs and it is then adjusted upwards in light of the quantity of the less serious drug in order to arrive at the ultimate starting point but no such adjustment is required if the less serious drugs is present in insignificant quantity.”

The Court of Appeal went on to say that no matter which approach is taken, the paramount consideration at the end of the day is the totality of the overall starting point.

9.  Later in another case, HKSAR v Wong Kin Kau (unreported) CACC 269/2009, the Court of Appeal further expressed that often it is the combined approach which is more likely to lead to the correct overall sentence.

10.  In this case, we are dealing with both cocaine and ICE.  In terms of potency, ICE is more serious than cocaine if one looks at the sentencing tariff laid down by the Court of Appeal.  The total quantity of ICE in this case, however, is only 4.37 grammes whereas the total quantity of cocaine is 24.89 grammes.  If we combined the quantity of the two drugs together by converting the quantity of cocaine also into ICE, the total quantity would be about 29 to 30 grammes.  According to the tariff for ICE which is laid down by the Court of Appeal in AG v Ching Kwok Hung [1991] 2 HKLR 125, as later amended in HKSAR v Capitania, [2004] HKCU 926, for the quantity of 10 to 70 grammes, the starting point should be 7 to 10 years. Therefore for a total quantity of about 30 grammes, the appropriate starting point would be about 96 months or 8 years.  However, this total quantity of 30 grammes is only a “combined quantity” and on ICE alone it is only 4.37 grammes.  According to the same tariff for ICE, up to 10 grammes, the starting point is between 3 to 7 years.  Therefore the appropriate starting point for ICE alone should only be 54 months.  Deducting 54 months from 96 months, the extra quantity of cocaine as converted into ICE thereby represents a sentence of 42 months.

11.  As said, this extra quantity of cocaine is about 25 grammes (24.89 grammes).  For 25 grammes of ICE according to its own tariff, the starting point would be 7 years and 6 months.  However, for the same quantity according to the tariff for cocaine, the starting point is only 6 years and 3 months. One can readily see, therefore, by comparing these two tariffs based on the same quantity of drugs, the ratio of the tariff between cocaine and ICE would be about 7 to 10.  Applying this ratio, the extra 42 months of sentence must be reduced to about 30 months to reflect the fact that the drugs are originally cocaine and not ICE.  In the end, I consider that the combined quantity of both drugs should attract a starting point of 84 months’ imprisonment.

12.  There are two counts of trafficking in dangerous drugs.  Given the fact that the defendant committed both offences on the same date and the drugs in the 2nd count were found at this home and the drugs found in the 1st count was found on his body when he had just left the home, in such circumstances, I agree that a concurrent sentence of both charges is appropriate. 

13.  There is no evidence that both cocaine and ICE had been mixed together in a cocktail to enhance their potency.  However, they were found together and albeit they were packaged differently, the potential is still there and it is something which the Court of Appeal had said in Wong Kin Kau(supra) that the court should take into account.  In the end, I decided that I should add an extra 3 months to reflect the presence of these two drugs and the potential of them mixing together.

14.  The total starting point therefore becomes 87 months.  The defendant pleaded guilty and he is entitled to one-third discount which is the only mitigation in this case. 

Order

15.  For these two offences, the defendant is therefore sentenced to 58 months’ imprisonment, sentences on both charges to run concurrently.