HKSAR v. LEE TSZ HO AND ANOTHER

DCCC 125/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 125 OF 2017

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REASONS FOR SENTENCE

1.  D1 pleads guilty to two charges of trafficking in a dangerous drug (charges 1 & 2) and D2 pleads guilty to two charges of trafficking in a dangerous drug (charges 2 & 3), contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.  Full particulars of the offences are set out in the facts admitted by the defendants yesterday.  In summary on two separate occasions in March last year the defendants supplied dangerous drugs to an undercover police officer (charges 1 & 2).

3.  On 7 March 2016 D1 supplied to the undercover police officer 1 plastic bag containing 1.48 grammes of a crystalline solid containing 1.47 grammes of methamphetamine hydrochloride (‘ice’)(charge 1). 

4.  On 14 March 2016 D1 offered to supply the same undercover police officer more ice telling him to act quickly as he had many customers who wanted the stuff.  On 16 March D1 took the undercover officer to meet D2 who gave him a cigarette box inside which was a plastic bag containing 4.63 grammes of a crystalline solid containing 4.60 grammes of ice (charge 2).

5.  On 8 April 2016 D2 was intercepted in Kin Ming Estate in Tseung Kwan O.  Upon search the police found in the right sock of the defendant a plastic bag containing 5.15 grammes of a crystalline solid containing 5.09 grammes of ice.  Inside the defendant’s bag the police also found an electronic scale and eleven re-sealable transparent plastic bags (charge 3).  

6.  Under caution and in a video interview D1 admitted, inter alia, that he sold ice to the undercover police officer because he was short of money and that D2 asked him to find somebody who wanted to buy ice. 

7.  Under caution and in a video interview D2 admitted, inter alia, that he sold ice to earn a little money; D1 asked for ice to sell to the undercover police officer; and when intercepted he was delivering the ice for a reward of a few hundred dollars. 

Starting point

8.  In HKSAR v Tam Yi Chun[2] the Court of Appeal recast the sentencing guidelines for trafficking in ice.  The starting point after trial where the quantity of narcotic is up to 10 grammes is between 3 and 7 years’ imprisonment.

D1

Mitigation

9.  In passing sentence, I have carefully considered everything said on behalf of D1 by Mr Chan including that D1’s father has cancer and that he has a young daughter.  I have read D1’s mitigation letter in which D1 expresses his remorse and promises not to commit the offence again.  I take into account D1 has no previous convictions for drug offences, although I note he has today also appeared in the Kwun Tong Magistracy for drug offences. 

Sentence

10.  I am satisfied the proper starting point after trial for 1.47 grammes of ice, based on quantity alone, is 3 years and 6 months’ imprisonment and for 4.60 grammes of ice is 4 years and 9 months’ imprisonment.

11.  Giving D1 full credit for his pleas of guilty reduces the sentences to 2 years and 4 months’ imprisonment and 3 years and 2 months’ imprisonment.

Totality

12.  Mr Chan submits concurrent sentences should be imposed as the offences are of similar nature.  I disagree.  Subject to totality sentence must reflect there were two separate occasions when ice was supplied[3].

13.  I order 18 months of the sentence on charge 2 to be served consecutively making an overall sentence of 3 years and 10 months’ imprisonment, which I am satisfied properly reflects D1’s overall criminal culpability on the two charges.

14.  D1 is convicted and sentenced as follows:

Charge 1 – 2 years and 4 months’ imprisonment; and

Charge 2 – 3 years and 2 months’ imprisonment with 18 months consecutive and 20 months concurrent to charge 1.

Total sentence to be served by D1 is 3 years and 10 months’ imprisonment.

D2

Mitigation

15.  In passing sentence, I have carefully considered everything said on behalf of D2 by Mr Chiu.  I take into account D2 has no previous convictions for trafficking in drugs and that he has recently joined the organ donation registration scheme.

Sentence

16.  I am satisfied the proper starting point after trial for 4.60 grammes of ice, based on quantity alone, is 4 years and 9 months’ imprisonment and for 5.09 grammes of ice is 5 years’ imprisonment.

17.  Giving D2 full credit for his pleas of guilty reduces the sentences to 3 years and 2 months’ imprisonment and 3 years and 4 months’ imprisonment.

Totality

18.  The two offences are separate and distinct for which consecutive sentences are appropriate.  I am satisfied an overall sentence of 4 years and 8 months’ imprisonment properly reflects D2’s overall criminal culpability on the two charges.

Delay

19.  Delay in bringing an offender to justice is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; where the delay has given the offender the opportunity to rehabilitate himself; whether restitution has been made; whether there was a legitimate expectation the matter will not be further pursued; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[4].

20.  Both defendants were arrested on 8 April 2016 and first appeared in court on 5 January this year.  Mr Iu explained the time taken to bring the case to court was due to the number of persons involved in the undercover operation. 

21.  Arguably the matter could reasonably have been brought to court earlier than it was. However, I am satisfied no further discount should be given in sentence for this delay both defendants having been granted bail committed offences whilst on bail. 

22.  For offences of theft and possession of ice committed by D2 in September last year he was sentenced in November to DATC, which sentence he has now served[5].  Had the present case been brought to court earlier and D2 sentenced at the same time he would not have been sentenced to DATC. 

23.  Instead he would have received short sentences of imprisonment.  Applying the totality principle only part would have been ordered to be served consecutively.  In the circumstances I am satisfied some credit should be given for having served DATC.  Accordingly, I reduce the totality of sentence to be served by D2 by 2 months’ imprisonment to 4 years and 6 months’ imprisonment. 

24.  D2 is convicted and sentenced as follows:

Charge 2 – 3 years and 2 months’ imprisonment; and

Charge 3 – 3 years and 4 months’ imprisonment with 16 months consecutive and 24 months concurrent to charge 2.

Total sentence to be served by D2 is 4 years and 6 months’ imprisonment.