HKSAR v. HO TAK SHING

DCCC 545/2017

[2018] HKDC 1014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 545 OF 2017

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Reasons for Sentence

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1.  The defendant has pleaded guilty to three charges today. The first charge is trafficking in a dangerous drug. In fact, he has unlawfully trafficked in two drugs: namely 2.2 grammes of a crystalline solid containing 2.09 grammes of methamphetamine hydrochloride, and 0.88 grammes of a mixture containing 0.54 grammes of heroin hydrochloride. He has pleaded guilty to the second charge, keeping a divan. The third charge is he failed to surrender to custody without reasonable cause.

2.  The facts are as follows.

3.  On 20 December 2016, the police had a search warrant for the defendant’s flat.  They executed it at about 8 pm.  This meant that the premises were targeted and the police’s suspicions were accurate.  When they entered the police found some people inside the premises, including the defendant. 

4.  The police found evidence of the defendant keeping a divan: drugs, namely “Ice” and heroin, were sold by the defendant to others in the premises and they were either smoked, inhaled or ingested within the premises.  Put more simply, there was evidence of drug consumption for the police to see inside the premises.

5.  The defendant frankly admitted that he had bought dangerous drugs in Sham Shui Po and was selling it to customers or friends inside his premises.

6.  The police found $1,100 cash and he admitted that that was profit he had earned from selling drugs to his friends.

7.  The police found the “Ice” and heroin of Charge 1 on the defendant in his jeans pocket, and the defendant told the police that those drugs were what was left after having - sold the rest of the drugs to his friends.

8.  The defendant told the police that he himself had been taking drugs for many years, over 20 years, and mainly consumed “Ice” and heroin.

9.  It is agreed that the value of the drugs in Charge 1 totalled about $1,300.

10.  The defendant was granted bail, he pleaded not guilty and this case had been set down for trial.  The trial was originally set down for two days, on 16 and 17 November 2017.  The defendant had obviously answered all his bail terms up until the first day of trial.  He even appeared on the first day of trial, but absconded before the trial commenced.

11.  He was rearrested on 12 January 2018.  He explained under caution that he did not enter the court or he did not start the trial because he was afraid to go to jail. 

12.  That is the history behind Charge 3.

13.  The defendant is now 59 years old, not a man with a clear record.  In fact, he has over 23 court appearances obtained, 40 convictions.  Many of those are drug-related convictions and include four trafficking convictions.  His last two trafficking convictions were in 2010 and 2013.  The defendant can be defined as a recidivist, a repeat offender, which is an aggravating factor that I can take into account.

14.  Mr Khattak has said all he can say in mitigation on behalf of the defendant.  The defendant’s plea is his best mitigation. 

15.  Part of the defendant’s mitigation is that some of the dangerous drugs of Charge 1 would have been for self-consumption.  There is no dispute that the defendant is a long-term drug addict.  There are urine test results from the date the defendant was remanded that show he on that date was positive for “Ice” and opiates.

16.  The prosecution do not challenge this mitigation and accept that there may have been a small portion of that dangerous drugs for self-consumption.

17.  Regarding that claim, I have reminded myself of the relevant principles in Hong Kong SAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69, as well as Hong Kong SAR v Chow Chun Sang [2012] 2 HKLRD 1121.  It is not necessary for me to specify how much of the drugs in Charge 1 I will apportion to that mitigation.  In the latter case, the Court of Appeal has held that a discount of between 10 per cent and 25 per cent from the basic starting point would be appropriate in these cases.

18.  In this case, even Mr Khattak recognises that, under the circumstances of these facts, the defendant is only entitled to a small discount and even though I accept this mitigation I still bear in mind there is the obvious latent risk he would have sold to another customer if the police had not arrived.

19.  In considering the starting point for trafficking “Ice”, I have taken into account what the Court of Appeal have previously said in the Attorney-General v Ching Kwok Hung [1991] 2 HKLR 125 and HKSAR v Tam Yi Chun [2014] 3 HKLRD, where the Court of Appeal tidied up the guidelines for trafficking “Ice”.  The Court of Appeal have said, where up to 10 grammes is trafficked, 3 to 7 years’ imprisonment is appropriate. 

20.  Where heroin is concerned, I have taken into account the guidelines of R v Lau Tak Ming [1990] 2 HKLR 370, where it was decided, where up to 10 grammes is trafficked, a 2- to 5-year term of imprisonment is appropriate.

21.  In this situation where there is more than one type of drug, I have considered what approach to take and I find the combined approach in sentencing the most appropriate.  Not only is “Ice” the most potent drug here, it is the drug of the most quantity.

22.  I will take for the quantity of “Ice” in Charge 1 a starting point of 4 years’ imprisonment, and, bearing in mind the combined approach, I will consider the quantity of heroin being 0.54 grammes and to reflect that quantity I will add a further 6 months to that starting point.

23.  As I said earlier, I do find that there is an aggravating factor in this case.  That would be borne out by the defendant’s persistent re-offending and I have considered the authority of Hong Kong SAR v Ngo Van Huy [2005] 2 HKLRD 1.  I propose to enhance that starting point by a further 3 months.  Therefore, the starting point becomes one of 4 years and 9 months.

24.  As I said, I would accept the defendant’s mitigation of a portion of self-consumption.  I will reduce that starting point by 6 months, which is a discount of just under 10 per cent.

25.  Defendant, you are not entitled to a one-third discount for your plea because it was not an indication of a plea from the outset.  You are now only entitled to a discount of 25 per cent.

26.  After that discount of 25 per cent is applied to that starting point, the starting point is reduced to one of 3 years, 2 months and 1 week, but I will round that up in your favour to a sentence for Charge 1 of 3 years and 2 months.

27.  Charge 2, there is no tariff guidelines for keeping a divan.  Sentences have varied from between 12 months to 24 months. 

28.  I have taken into account that the premises are very small.  There is no evidence that the premises have been in operation for any significant period of time.  I will take a starting point of 16 months. When a discount of 25 per cent is applied to that starting point, it is reduced to 12 months.

29.  Charge 3, I take a starting point of 9 months. Here, I will give you a discount of one-third.  That charge has been recently added to the charge sheet.  Once that discount is applied, for Charge 3 you are sentenced to 6 months’ imprisonment.

30.  I am going to take the totality principle into account.  I am going to order Charges 1 and 2 to be served concurrently.  I am going to order 2 months of Charge 3 to be served consecutively to Charge 1 and 4 months concurrently. 

31.  That means a total sentence of 3 years and 4 months.

COURT: Do you understand that sentence?

DEFENDANT: I understand.