HKSAR v. KWAN TSZ HO

DCCC 279/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 279 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant has been convicted on his own plea of one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134, namely 4.45 grammes of a solid containing 4.05 grammes of cocaine.

Facts

2.  On 5 January 2017, at about 3:51 am, police officers spotted a stationary private car outside Ground Floor, Nos 157-171 Wuhu Street, Hung Hom, Kowloon, Hong Kong.  They approached the private car and found the defendant was on the driver’s seat looking around.  Li Wai Lun (“Li”) was sitting on the front passengers’ seat of the private car at the material time.

3.  The police officers requested the defendant and Li to alight from the car. They searched and found inside the storage compartment of the private car a tissue paper wrapping a plastic resalable bag containing 21 plastic bags containing a suspected dangerous drug. It was confirmed by Government Chemist as a total of 4.45g of a solid containing 4.05 g of cocaine.

4.  Police found HK$5,070.20 cash and 2 mobile phones on the defendant.

5.  The police arrested and cautioned the defendant for “possession of dangerous drugs”.  The defendant replied, “Sir, the dangerous drugs belonged to me for my self-consumption”.

6.  In subsequent cautioned interview, the defendant admitted the followings:-

(a) The defendant bought the dangerous drug from a person called “Ah Ming Jai” at about 2 am near Pei Ho Street, Sham Shui Po, at a price of HK$200 per bag (HK$4,200 in total). The defendant had no contact information of “Ah Ming Jai”;

(b) The dangerous drug was for self-consumption. He bought 21 bags of dangerous drug at a time because (1) it would be cheaper to buy more, and (2) it would be less likely for police to find dangerous drug on him;

(c) After the defendant bought the dangerous drug, Li called and asked the defendant to have a late-night supper with him near Tam Kung Road, To Kwa Wan. After their supper, Li was very tired and asked the defendant to drive the private car to a carwash at Wuhu Street. Without Li knowing, the defendant put the dangerous drug into the storage compartment in front of the gear shifter when he picked up the private car;

(d) As far as the defendant know, Li borrowed the private car from Li’s friend; and

(e) The defendant’s monthly salary is HK$15,000. He spends around HK$6,000 to 8,000 on dangerous drug every month.

7.  The estimated street value of the dangerous drug seized is HKD$4,040.

8.  At the material time, the defendant was in possession of the dangerous drugs seized for purpose of unlawful trafficking.

Previous convictions

9.  The defendant first transgressed the law in 2010.  He had been convicted on one previous occasion for criminal intimidation and common assault.  He was ordered to commit 120 hours of CSO.

10.  The antecedent statement of the defendant shows that the defendant was born in Hong Kong.  He is now 30 years old.  He was educated up to Form 3 standard.  He was employed as a vehicle repairer, earning $6,000 per month. He resides with his mother in Yuen Long. His two elder sisters have moved out after they got married.

11.  Two mitigation letters written by the defendant’s mother and elder sister were submitted to this court. They asked for leniency on behalf of the defendant.

12.  The defendant claimed that he has drug abuse problem in the antecedent statement. He asserted through his lawyer, Mr Kam, that about one third of the drugs seized was for his own consumption. 

13.  I ask if there is any medical evidence to prove that the defendant is a drug addict. Mr Kam said there was not any.

14.  Mr Kam referred to HKSAR v Owusu Daniel CACC 120/2016 and HKSAR v Kong Tat Lung CACC 27/2016 and submitted that the Court of Appeal did not interfere with the sentences imposed for the reduction in sentence based on the bare assertion by the defendants that portion of the drugs were for self-consumption.

Sentencing considerations

15.  The Court of Appeal in the case of Pedro Nel Rojas [1994] 2 HKCLR 69 says that the guidelines in Lau Tak Ming are the correct basis for sentence for trafficking in cocaine as cocaine and heroin are very closely alike in their degree of harm. According to the tariff set down in Lau Tak Ming, up to 10 grammes of narcotics, 2 to 5 years should be adopted as the starting point. 4.05 grammes of cocaine was found on the defendant. In my judgment, that calls for a starting point of 3 years and 2 months’ imprisonment.

16.  I raised to Mr Kam as to why the defendant had around $9,270 cash with him on that day. He spent $4,200 on cocaine and the police had found over $5,000 in his possession. This would exceed his monthly earning of $6,000.  To that assertion that a part would be for defendant’s own consumption, I am not prepared to accept it but would be willing to hear further evidence to determine the issue. However, Mr Kam indicated that prior instructions taken from the defendant and that he elected not to testify in court in support of his claim of self-consumption.

17.  I reject the defendant’s claim that he intended to consume a third of the cocaine seized. In coming to that conclusion, I have borne in mind the various factors referred to in HKSAR v Wong Suet Hau[2002] 1 HKLRD69.

18.  I have grave doubt about the defendant’s claim because his allegation of part consumption is not worthy of belief. He lives in Yuen Long area. He bought the drugs in Sham Shui Po at about 2 am. If that was the case, I would expect him to go straight home first from Sham Shui Po rather than hanging around in the streets. However, he went to have night supper with his friend in To Kwa Wan. After that he drove the private car to Wuhu Street to have a carwash.  This was where he was stopped by the police at 3:51am. It is totally implausible one would hang around in the street for almost two hours after he had bought the drugs. His act tallied with that of a drug trafficker instead of a drug user. 

19.  Besides, the claim that the defendant intended to use one third of the cocaine does not sit well with his admission under caution. That would mean that he had lied to the police at the time of arrest when he said he had the drugs for his consumption.

20.  All in all, for the reasons above, I am not prepared to accept the defendant’s claim that the drug was for his own consumption. Now he pleaded guilty to the charge.  He is entitled to the customary one-third reduction for his guilty plea.  That would bring his sentence down to 25 months.

21.  The defendant is therefore sentenced to 25 months’ imprisonment.