HKSAR v. LAU KAM YIN

DCCC 770/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 770 OF 2015

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REASONS FOR SENTENCE

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INTRODUCTION

1. On 31 December 2015, the defendant was convicted on his own guilty plea of one charge of trafficking in a dangerous drug, laid against him pursuant to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

FACTS

2. On 16 June 2015, a team of police officers saw the defendant acting in a suspicious manner outside Block 23, Shek Kip Mei Estate, Sham Shui Po, Kowloon.  They intercepted him and found in the front pocket and the main compartment of his waist bag, first, ten pellets (some white in colour, others pink) of what was subsequently determined by a government chemist to be 2.35 grammes of a mixture containing 1.61 grammes of heroin hydrochloride and, secondly, two transparent plastic bags containing 50 pellets (again, some in white wrappings, others pink) of what was later found to be 11.1 grammes of a mixture containing 7.61 grammes of heroin hydrochloride.  The defendant was arrested, and under caution, he said the white powder was for his own use.  He was subsequently found to have in his possession some $9,315.8 cash.

3. A house search was conducted at the defendant’s residence, no incriminating items were found.  In a cautioned video recorded interview, he averred that for his own consumption, he had purchased the white powder in bulk at a cheaper price of $8,000 in Shek Kip Mei from an unknown male; the white pellets of heroin were heavier than the pink ones; the cash found in his possession represented his savings and salary from his part-time employment as a logistics worker in which capacity he had been making over $10,000 a month; and he would consume two to three pellets a day, spending $400 to $500 a day.

4. While in custody at the Lei Chi Kok Reception Centre, the defendant told a CSD officer that he had concealed dangerous drugs in his body.  On 21 June 2015, he excreted a white pellet of what was later found to be 0.27 grammes of a mixture containing heroin hydrochloride.  He admitted to another CSD officer that the pellet contained heroin.  A police officer attended the Lei Chi Kok Reception Centre and arrested the defendant.  Under caution, the defendant said that he had swallowed the pellet upon his earlier arrest by the police, a pellet which he had purchased from a man with white hair for $230 for his own use.

5. Upon his arrest on 16 June 2015, the defendant has had in his possession a total of 13.72 grammes of a mixture containing 9.22 grammes of heroin hydrochloride, the street value of which was around $9,345.

MITIGATION

6. The defendant was born in 1970 and has 15 conviction records involving 20 offences, nine of which were related to dangerous drugs.  He has received education to Form Three level, and he works as a casual workers.  He has been a drug addict for the last 21 years and has on three occasions been sent to the Drug Addiction Treatment Centre.  He was last sentenced to imprisonment in February 2015 for two offences of possession of dangerous drugs and was released from prison on 9 May 2015. By his letter handed up to court before sentence, the defendant reveals that his aged mother has been visiting him on a regular basis.  He asks the court therefore to pass a lenient sentence on him so that he can resume looking after his mother as soon as possible.

7. In his plea in mitigation, Mr Paulinus Lo appearing for the defendant puts forward the following matters for the court’s consideration.  The defendant has never been convicted of any offences of trafficking in a dangerous drug, prior to his conviction of the present offence.  While he was last in prison, his mother has maintained his room by paying the rental expenses for him.  Upon his discharge, he has been gainfully employed for some 25 days at a daily wage of $800.  He has resumed taking dangerous drugs because his wife intended to divorce him.  Subsequent to his discharge from prison, he has only spent $1,000 on the first occasion when he purchased dangerous drugs for his own use.  With respect to the white powder seized in his possession on 16 June 2015, he has intended to sell it within his own social circle.  Finally, the substantial part of the white powder was for the defendant’s own consumption. 

REASONS FOR SENTENCE

8. Trafficking in heroin is a serious offence, be it committed by a fresh or a repeat offender.  The Court of Appeal in The Queen v Lau Tak Ming & ors[1] held that the sentence guideline for trafficking in zero to ten grammes of heroin hydrochloride should be between two and five years’ imprisonment.

9. In view of the quantity of narcotics concerned, the proper starting point is one of four years and three months’ imprisonment.  The defendant has committed the present offence shortly after completion of his last prison term.  On this score, the starting point is enhanced by three months, resulting in a term of imprisonment of four years and six month.

10. The defendant was arrested in possession of a number of pellets of heroin, the gross weight of which totalled 13.72 grammes.  According to his cautioned admission, he would consume two to three pellets a day.  Mr Lo relies on HKSAR v Wong Suet Hau and anor[2], a case in which the Court of Appeal detailed the relevant considerations with respect to the issue of self-consumption as a ground of mitigation.  Those considerations include the quantity and value of the drugs, whether the defendant is a habitual user, and the explanation given by the defendant following his arrest.  Mr Lo urges the court to accept that the defendant has intended to consume a substantial portion of the heroin concerned, stressing that no heroin has been found at the defendant’s residence, and he said under caution that he had the dangerous drugs for his own consumption.

11. In view of the available material and the weight of Mr Lo’s submissions, Mr Hui appearing on fiat for the prosecution does not, fairly, put forward any counter argument and expresses to the court that the prosecution are content to abide by the court’s ruling on this point.

12. In these circumstances, the court accepts Mr Lo’s submissions and finds that the defendant has had the substantial portion of the dangerous drugs for his own use.

13. Of the issue of self-consumption being relied upon as a ground of mitigation, the Court of Appeal in HKSAR v Chow Chun Sang[3] said:

14. In drug trafficking cases, the fact that all or part of the drug involved is for the defendant’s self-consumption is recognized as a mitigating factor (see, for example, R v Chan Mung-lung [1992] 2 HKCLR 127 and R v Chung Kam Fai [1993] HKC 42).

15. In R v Meah & Marlow (1991) 92 Cr App R 254, a case concerning drug trafficking by way of importation of drugs, Jupp J also made the following observations (at 256):

“Importing is a distinct offence from possessing. The penalties are different and in our view it is not right to say that this must be treated simply as a case of possession. Nevertheless there must be a considerable reduction in sentence to reflect the fact that the drugs were for the appellant’s own consumption.”

16. In the case of Chung Kam Fai cited above,the defendant brought 306.67 grammes of heroin from Bangkok, Thailand into Hong Kong and contended that the drug was wholly for his own consumption. The Court of Appeal took the view that, in the absence of a ruling by the trial judge on such contention, sentencing should be approached in a way most favourable to the defendant. The Court of Appeal adopted a starting point of 16 years, and further to a reduction in sentence to 9 years on account of the defendant’s guilty plea and assistance to the authorities, the Court gave the defendant an additional 2-year discount, which was equivalent to 12% of the starting point of 16 years, in light of the self-consumption of all the drug by the defendant. In HKSAR v Chow Kam Lung [2010] 4 HKLRD 253, the Defendant admitted importing 22.15 grammes of ketamine from the Mainland, but claimed that the drug was wholly for his own consumption. The Court of Appeal considered that the reduction in sentence on account of the above factor should be in the region of 25%.

17. We have to point out that the defendants in Meah & Marlow, Chung Kam Fai and Chow Kam Lung were all involved in importing drugs and sentenced by the Court on the basis that the drugs were wholly for their own consumption.

18. In HKSAR v Cheuk Kin Man [2010] 5 HKLRD 558, the defendant pleaded guilty to trafficking in 15.77 grammes of heroin but claimed that two-thirds thereof were for his own consumption. The Court of Appeal agreed that when part of the dangerous drug was intended for personal consumption by the trafficker, an appropriate, albeit not substantial, discount to sentence should be given. The defendant was given an approximate discount of 15% by the Court of Appeal.

19. We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant. We need to emphasize that unless the judge has erred in principle, the appellate court should not interfere with a discount to sentence given by the judge on account of self-consumption of part of the drugs a defendant trafficked in.

14. In all the circumstances of this case, the court is prepared to grant the defendant close to one-fifth reduction by reason of his intention to consume the substantial portion of the heroin concerned.  The resulting starting point is therefore one of 44 months’ imprisonment.

15. The defendant is entitled to one-third discount for his guilty plea, but little in his background or in the circumstances of the commission of the offence would warrant any further reduction in sentence.  A habitual offender as the defendant is, he would have been fully aware of the adverse effects his further offending would have on his aged mother.  The final sentence is therefore 29 months’ imprisonment.

CONCLUSION

16. For the offence of which he stands convicted, the defendant is sentenced to 29 months’ imprisonment.