HKSAR v. LUK CHI FAT AND ANOTHER

DCCC364/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 364 OF 2011

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Reasons for Sentence

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The Charges

1.  The 1st Defendant pleaded guilty to one charge of “trafficking in dangerous drugs”, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (1^st charge), and one charge of “possession of apparatus fit and intended for the inhalation of a dangerous drug”, contrary to sections 36(1) and (2) of the Dangerous Drugs Ordinance, Cap. 134 (2^nd charge).

2.  The 2nd Defendant pleaded guilty to one charge of “theft”, contrary to section 9 of the Theft Ordinance, Cap. 210 (3^rd charge) and one charge of “possessing false instruments”, contrary to section 75(2) of the Crimes Ordinance, Cap. 200 (4^th charge). She pleaded not guilty to the 5^th charge “resisting a police officer” and, upon the prosecution’s application, the charge was left on the court file and not to be proceeded with without the leave of the court.

The Facts

3.  These offences were discovered when the police executed a search warrant in the premises occupied by the 1st and the 2nd Defendants on 23 December 2010. At the time, the 2nd Defendant and another female were coming out from the premises and were acting furtively. The police stopped them and requested to search the premises. They took over the keys from the 2nd Defendant and attempted to open the door. However, someone was pushing the door from inside the premises. Eventually, the police had to force open the door.

4.  Upon entry, the police saw the 1st Defendant throwing some objects out from the window of the balcony which were later confirmed to be 2 bags of “ice”, 2 stacks of empty resealable plastic bags, 1 electronic scale, and 1 plastic box. Upon further search in the premises, 12 bags containing ice, 1 bag containing cocaine and 1 bag containing nimetazepam were found. The drugs are the subject matters of the 1^st charge, that is, 5.86 grammes of a crystalline solid containing 5.79 grammes of methamphetamine hydrochloride, 2 tablets and a tablet fragment containing a total of 9 milligrammes of nimetazepam and some traces of a powder containing cocaine.

5.  In addition, 1 inhaling device fitted with glass tubes, the subject matter of the 2^nd charge, was also found inside the premises.

6.  During a subsequent video-recorded interview, the 1st Defendant stated that he was cohabitating with the 2nd Defendant in the premises. As for the “ice”, he claimed that he bought it a few days ago and he would consume one to two packets a day. However, he said that he would share dangerous drugs with his friends who visited the premises. Insofar as the inhaling device and the other paraphernalia were concerned, they belonged to him and he used them for consumption of drugs.

7.  Apart from the drugs and the inhaling device, the police also found inside the premises 1 HSBC statement dated 14 December 2010, 1 Hang Seng Bank statement dated 14 December 2010, and 1 Standard Chartered Bank (“SCB”) statement dated 15 December 2010, all addressed to Cheung Fung Mei, as well as 1 SCB letter dated 16 December 2010 and 1 SCB statement dated 15 December 2010, both addressed to Chan Tung Kwok. These are the subject matters of the 3^rd charge.

8.  Moreover, 2 false statements purportedly issued by the Hong Kong Broadband Network (“HKBN”) dated June 2010 and addressed to Cho Mei Wah were also found inside the premises. These false statements are the subject matters of the 4^th charge.

9.  Police investigation later revealed that the addresses stated on the mails for Cheung Fung Mei and Chan Tung Kwok could not be found and that when such letters could not be delivered by the post office, they would be put into a pubic letter box at the entrance of the village concerned, that is, Sham Tseng Village, for pick-up.

10.  During a subsequent video-recorded interview, the 2nd Defendant claimed that the HKBN statements belonged to her friend Cho Mei Wah.  When Cho stayed in the premises, she had seen Cho using a printer to make copies of the statements by altering the address thereon. At the time, Cho told her that she required the false statements as address proof for opening bank accounts. The 2nd Defendant said, after Cho left, she could not locate Cho but she kept with her the false statements and other bank documents addressed to Cho. Regarding the mails for Cheung Fung Mei and Chan Tung Kwok, the 2nd Defendant admitted that she got those from the public letter box at Sham Tseng Village a few days ago.  

Mitigation – the 1st Defendant

11.  The 1st Defendant is aged 46. He was educated up to Form 2 level and, prior to his arrest, he had worked as a transportation worker. The 1st Defendant has been before the court on 4 previous occasions with 6 conviction records. Three of those were “trafficking in a dangerous drug”, one was “possession of a dangerous drug” and the remaining two were gambling related offences.

12.  In mitigation, it was said that the 1st Defendant was a drug addict himself and he consumed part of the drugs, that is, about 1-2 grammes of “ice” per day. He is now remorseful.

Mitigation – the 2nd Defendant

13.  The 2nd Defendant is aged 42. She was educated up to Form 4 level. She worked as a sales lady before she got married. Her husband has left the family after their divorce and she has three daughters aged 8, 9 and 11. All of them are now being looked after in foster families. At the time of the offences, she was cohabitating with the 1st Defendant.

14.  The 2nd Defendant has been before the court on 3 previous occasions with 3 convictions, two were “possession of a dangerous drug” and one was “suffering premises to be used for trafficking in a dangerous drug”.

15.  In mitigation, it was said that the 2nd Defendant committed the offences out of stupidity. The 2nd Defendant asked for a lenient sentence in her letter written to the court and Ms. Sim acting for her also submitted that the offences committed by the 2nd Defendant were relatively minor.

Sentencing Considerations

16.  The Court of Appeal has pointed out in a number of decisions that there are two sentencing approaches, that is, the “individual approach” and the “combined approach”, to be adopted where a Defendant trafficks in more than one type of dangerous drugs (see, e.g. HKSAR v Ko Ka Hing [2009] 4 HKLRD 856).

17.  In the present case, given that the drugs were not mixed together, the “individual approach” would, in principle, be more appropriate. However, as the drugs mainly consisted of methamphetamine hydrochloride, that is, “ice”, whereas the amount of nimetazepam was very small (only 9 milligrammes), and that only traces of cocaine could be found, I am going to ignore the latter drugs when deciding on the starting point for the 1^st charge. This practice was considered in HKSAR v Wong Kam Wo [2001] 2 HKLRD 290 as correct. 

18.  Insofar as trafficking in “ice” is concerned, the tariff was laid down in AG v Ching Kwok Hung [1991] 2 HKLR 125 and corrected in HKSAR v Capitania CACC 28/2004 (unreported). For trafficking up to 10 grammes of ice, a term of imprisonment of 3 to 7 years is called for. In the present case, having considered the facts and the amount involved, I consider a starting point of 4 years and 3 months to be appropriate.

19.  In mitigation, Ms. Sim submitted that as the 1st Defendant was a drug addict himself, part of the drugs was for his own consumption. Relying on HKSAR v Wong Suet Hau & Anor. [2002] 1 HKLRD 69, Ms. Sim asked the court to take account of the self-consumption factor and to reduce the sentence accordingly.

20.  Since an inhaling device was found inside the premises and the 1st Defendant has a “possession of a dangerous drug” conviction record, I accept that the 1st Defendant was a drug addict and that part of the drugs concerned could be for his own consumption. However, I notice that the 1st Defendant admitted under caution that he would share the drugs with his friends.

21.  Therefore, considering the facts of this case, that possession of dangerous drugs itself would carry a term of imprisonment, and that there would be the latent risk factor, I am of the view that, in the present case, this mitigation based on self-consumption is not of much practical value and is not particularly powerful. A reduction of 3 months is all that it warrants and the starting point will be so reduced to one of 4 years.

22.  As regards the charge of “possession of apparatus”, I consider a starting point of 4½ months to be appropriate. Ms. Sim asked for this sentence to run concurrently with that for the trafficking offence. However, as these were separate and distinct acts, I do not see any reason to pass wholly concurrent sentences.

23.  For the theft of letters, Ms. Sim submitted that a fine would be appropriate. I do not agree. Stealing letters belonging to another would not only involve depriving that other’s opportunity of getting the mails, it would, no doubt, also mean the obtaining of one’s personal information. In the present case, the 2nd Defendant stole a total of 5 mails (4 bank statements and 1 bank letter) which belonged to two different persons. These are matters which should be viewed seriously and I consider that an immediate custodial sentence is appropriate. I take 3 months as the starting point for this charge.

24.  Concerning the “possession of false instrument” charge, on the facts admitted, the 2nd Defendant was fully aware that the documents had been used by her friend as address proof for the opening of a bank account. Yet, despite her friend’s departure and despite that she said she could not locate her friend, she still kept the two false statements with her instead of discarding them. Having considered all the relevant facts, I am of the view that a starting point of 12 months is appropriate.  

The Sentence Imposed

25.  Both Defendants pleaded guilty and they would get a one-third reduction in sentence for their pleas. Other than the pleas, I do not see any strong mitigating factor which would warrant any additional reduction in sentence.

26.  For charge (1), 4 years reduced by one-third is 32 months. For charge (2), 4½ months reduced by one-third is 3 months. For charge (3), 3 months reduced by one-third is 2 months. For charge (4), 12 months reduced by one-third is 8 months.

27.  These were separate acts and separate offences. Sentences should, in principle, run consecutively. However, applying the totality principle, I make the following orders :

(a) In respect of the 1st Defendant’s sentences, 1 month of the 3-month term for charge (2) is to run concurrently with the term of 32 months for charge (1), the rest to run consecutively, making a total of 34 months’ imprisonment for charges (1) and (2).

(b) In respect of the 2nd Defendant’s sentences, 1 month of the 8-month term for charge (4) is to run concurrently with the term of 2 months for charge (3), the rest to run consecutively, making a total of 9 months’ imprisonment for charges (3) and (4).