HKSAR v. LAW HOI FU

DCCC70/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 70 OF 2014

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Reasons for Sentence

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1.  There are 4 charges in the Amended Charge Sheet.  Charges 1 to 3 are all for offences under the Dangerous Drugs Ordinance, Chapter 134, Laws of Hong Kong.  Charges 1 and 2 are each for the offence of possession of a dangerous drug[1].  Charge 3 is for the offence of possession of apparatuses fit and intended for the inhalation of a dangerous drug[2]. Charge 4 is for the offence of possession of a prohibited weapon[3].  The defendant pleads guilty to all the charges.

Facts

2.  Around 9:15 p.m. on 5 November 2013, PC5473 stopped the defendant outside Gold Way Industrial Centre in Kwai Chung and searched him.  PC5473 found a re-sealable plastic bag of a substance commonly known as “ice” inside the right front trousers’ pocket of the defendant.  He then arrested the defendant.  Under caution, the defendant said that the bag of ice was for his own consumption. 

3.  The Government Chemist later confirmed that the substance was 3.17 grammes of a crystalline solid containing 3.11 grammes of methamphetamine hydrochloride (Charge 1).

4.  The police then executed a search warrant into a flat in Block B of Gold Way Industrial Centre (Flat A) which was owned by the defendant’s mother and brother but the defendant had resided there since 2009 and used it for storage of goods. PC33559 searched the flat and found on the bedroom desk two glass inhaling devices, a plastic box containing 3 re-sealable plastic bags of ice, two electronic scales with lid, and one re-sealable plastic bag containing a pile of 92 re-sealable plastic bags. 

5.  PC5473 then arrested the defendant inside Flat A.  Under caution, the defendant stated that the 3 bags of ice were for his own consumption, and that the two inhaling devices were used by him to consume ice. 

6.  The Government Chemist later confirmed that these 3 re-sealable plastic bags contained a total of 1.73 grammes of a crystalline solid containing 1.70 grammes of methamphetamine hydrochloride (Charge 2), and that one of the two inhaling devices contained 34 millilitres of a liquid containing traces of methamphetamine (Charge 3). 

7.  Later on the same day, the police executed another search warrant into another flat in Block A of Gold Way Industrial Centre (Flat B).  It was a flat rented by the defendant for storage of goods.  WPC5940 searched Flat B and found on the cupboard inside the living room a big plastic box containing an extendible baton placed inside a nylon bag and wrapped in a black plastic bag.  She also found a pile of 102 re-sealable plastic bags inside a big re-sealable plastic bag. 

8. PC5473 then arrested the defendant for possession of a prohibited weapon.  Under caution, the defendant stated that he found the baton in a rubbish pile (Charge 4).

9.  The Government Chemist later confirmed that the extendible baton was a gravity-operated steel baton.

10.  During a subsequent video-recorded interview, the defendant explained the 4 offences and some of the exhibits seized as follows:-

(1) He purchased around 7 grammes of ice from Ah Shing on 3 November 2013 in Sham Shui Po at the price of HK$1,000. He then split them into 4 re-sealable plastic bags for ease of carrying. He sometimes would use the re-sealable plastic bags found inside Flat A and Flat B to pack dangerous drugs but only for his own use. On the day of arrest, he took one bag of ice with him when he left Flat A to buy drinks because he did not want his girlfriend who was in Flat A at that time to discover the ice.

(2) He had taken ice for 5 to 6 years. He usually smoked 0.5 grammes of ice which would give him 4 to 5 hits every one or two days. He usually smoked ice in Flat A.

(3) He purchased the two inhaling devices in Temple Street two months ago at the price of HK$100 for consumption of ice.

(4) He found the extendible baton in a nearby rubbish disposal area about one to two months ago. He thought it was a torch. He took it back to Flat B and did not open the nylon bag ever since.

Criminal record

11.  The defendant has 10 previous conviction involving 16 charges.  In 1987, he was fined $4,000 for the offence of possession of dangerous drugs for the purpose of unlawful trafficking.  He has no other conviction relating to dangerous drugs.  He was last discharged from prison on 22 September 1999 after serving sentences for offences of going equipped for stealing and handling stolen goods.

Personal and family background

12.  The defendant is 48 years old.  He was born in Hong Kong.  He studied up to Form 3.  He had previously worked as an electrical lighting and renovation worker and as a lorry driver.  After his last discharge from prison, he started a trading business in second hand furniture, electronic goods and computer parts and earned about $8,000 to $12,000 a month.  His father has already passed away.  His mother is now 85 years old with eye problem.  He has 7 siblings all live apart from him.  He got married in 1994 but divorced in 2001.  He has a daughter now aged 18 but lives apart from him.  He lived alone prior to his present remand.

Outstanding offence

13.  The defendant committed this offence after he had jumped bail for another offence of unlawful trafficking in dangerous drugs.  For that other offence, he was arrested on 7 August 2012 and was granted bail 2 days later.  However, he jumped bail for that offence on 22 May 2013 when he had to attend a pre-trial review in the Court of First Instance of the High Court.  After his arrest for the present case, he was remanded in custody for both offences.  He will now stand trial for that other offence on 16 June 2014. 

Drug addiction treatment centre suitability report

14.  According to the defendant’s own reporting, he started abusing ice in 2008 under the influence of his dubious peers.  Prior to his remand, he abused ice about once or twice a week, and he last took ice in November 2013.  He has not received either voluntary or compulsory drug addiction treatment before.  Since the defendant is not a drug dependant now, he is considered not suitable for admission into a drug addiction treatment centre.

Mitigation

15.  Learned counsel for the defendant submitted that Charges 1 to 3 should be dealt with together since they all related to the drug addiction of the defendant.  Upon instruction, counsel stated that the defendant consumed ice at the average rate of once or twice a week, but he would consume more for up to once every two days if he needed to work overnight so as to keep him awaken.  Counsel submitted that in light of the small quantity of ice involved, there was little risk that the drug would fall into the hands of other people.  As for the prohibited weapon, counsel submitted that the weapon in question would not cause serious injuries and that there was no evidence that the defendant would use it for any unlawful purpose.  Counsel stressed that the defendant pleaded guilty to all charges and asked for a sentence as lenient as possible for the defendant.

Reasons for sentence

16. It is quite clear that a custodial sentence has to be imposed in the present case. First, for the offences in Charges 1 and 2, the total quantity of ice was 4.81 grammes.  While this quantity was not substantial, it was not small either. Second, for the offences in Charges 3 and 4, while Charge 3 was connected with his drug addiction, the offence in Charge 4 was of a completely different nature which was serious in itself.  Third, all these offences were committed by him after the defendant had jumped bail for another serious offence. Fourth, although the defendant had served sentences in prison before, they had no effect in deterring him from committing further offences.  Fifth, he is due to stand trial for another serious offence in the Court of First Instance, and he is now being remanded in custody pending trial.  With these factors in mind, it is simply not appropriate to impose a sentence such as probation, community service order or fine because such a sentence will not adequately reflect the gravity of the offences, and it will in any event be impracticable to impose probation or community service order on him because he is now in custody for another matter.

17. As to the form of custodial sentence, since the defendant is not suitable for admission into a drug addiction treatment centre, the only viable sentencing option is imprisonment.

18. As far as the quantum of the prison terms is concerned, Charges 1 and 2 shall be dealt with together since they are both for the offences of possession of a dangerous drugs, and the defendant possessed them at the same time though some were found on his person and some were found in his living place.

19. According to the Court of Appeal in the case of HKSAR v Mok Cho Tik [4], the appropriate starting point for possession of a dangerous drug was between 12 and 18 months’ imprisonment.

20. In light of the nature and quantity of ice involved but also the fact that the defendant did not have any criminal conviction relating to a dangerous drug since 1987, I find the appropriate starting point for each of Charges 1 and 2 to be 13 months’ imprisonment.

21. As to whether the starting point should be increased on the ground that there was a latent risk that the drugs would be disseminated to others, the Court of Appeal made it clear that it was the actual risk of dissemination that the sentencing judge should consider: HKSAR v Chan Tai Wah[5]. 

22. In the present case, when the defendant was questioned by the police, he explained why he carried the drug in the street and why he had the re-sealable plastic bags. There is nothing in the evidence to show that his explanation must be untrue, and I have to give him benefit of the doubt.  I note that he had given various accounts about the rate of his drug consumption, firstly to the police in his video recorded interview, secondly, to the in-take officer who prepared the DATC report, and lastly to his learned counsel.  Again, I give him benefit of the doubt and shall sentence him on the basis that what he has told his counsel is true.  In light of the defendant’s consumption rate and the quantity of ice involved, I accept counsel’s submission that the actual risk of dissemination minimal. Accordingly, I shall not adjust the starting point upward on the latent risk ground.

23. The defendant however committed these offences after he had jumped bail for another drug offence.  This was an aggravating factor that must be taken into account: HKSAR v Yuen Gang Shing[6]; HKSAR v Woo Chung Hing[7].  To reflect this aggravating feature, I adjust the starting point upward by two months to 15 months’ imprisonment for each of Charges 1 and 2.

24. As far as Charge 3 is concerned, the defendant possessed the two inhaling devices for consumption of ice in his living place. The appropriate starting point is 4½ months: The Queen v Law Sing[8].  Since the defendant committed this offence after he had jumped bail for his other offence, I adjust the starting point upward to 5 months’ imprisonment.

25.  As far as Charge 4 is concerned, it had been said that possession of prohibited weapon such as an extendable baton was a serious offence, and that the greater the potential that the weapon would get into the public arena the more serious the offence would be: HKSAR v Lee Chun Kit [9].  In the present case, there is no evidence that the defendant would carry the extendable baton with him in a public place.  Nor was there evidence that he would use it for an unlawful purpose.  Under these circumstances, I adopt one month imprisonment as the starting point, and adjust it upward to 1½ months on the ground that the offence was committed by him after he had jumped bail for the other offence.

26. I have already considered the mitigation advanced on behalf of the defendant.  I find that the only mitigating factor is the defendant’s guilty plea, for which he will be given one-third discount of the sentences.  There is no other valid reason for reducing the sentence.

For these reasons, the defendant is sentenced as follows:

Charge 1 10 months’ imprisonment

Charge 2 10 months’ imprisonment

Charge 3 Imprisonment for 3 months and 10 days.

Charge 4 One month’s imprisonment

27.  As to whether these sentences should run concurrently or consecutively, I bear in mind the principle of totality.  I note that while the overall sentence must not be too lengthy, it must also adequately reflect the overall criminality of the offences.

28.  It is quite clear that the sentences for Charges 1 and 2 should run concurrently.  As far as the sentence for Charge 3 is concerned, the offence was also drug-related, but it will not be right to order this sentence to run wholly concurrently with the sentences for Charges 1 and 2 because that will mean the defendant receives no punishment for this additional offence.  I therefore order that one month of this sentence should run consecutively to the sentences for Charges 1 and 2. 

29.  As far as the sentence for Charge 4 is concerned, this offence is of a completely different nature and is wholly separate from the other offences.  I am of the view that a consecutive sentence should be imposed.  I also consider that even if this sentence is to run wholly consecutively to the other sentences, the overall term will not be excessive. For these reasons, I order that the sentence for Charge 4 should run consecutively to the sentences for the other 3 charges.

30.  For these reasons, the defendant has to serve a total of 12 months’ imprisonment.

[1]  Contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance.

[2]  Contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance.

[3]  Contrary to section 4 of the Weapons Ordinance, Chapter 217.

[4]  [2001] 1 HKC 261.

[5]  CACC476/2011.

[6]  CACC303/1997.

[7]  CACC19/2002.

[8]  HCMA890/1996.

[9]  [2004] 1 HKC 573.