HKSAR v. LO CHUNG YIN

DCCC 1028/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1028 OF 2010

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Reasons for Sentence

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1.  The Defendant has been convicted on his own pleas on one count of possession of a forged identity card, contrary to Section 7A(1) of the Registration of Persons Ordinance, Cap. 177 and 2 counts of trafficking in a dangerous drug, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, the dangerous drugs in Count 2 being 2.7 grammes of a solid containing 2.04 grammes of cocaine and that in Count 3 being 50.94 grammes of a solid containing 31.82 grammes of cocaine and 100 tablets containing 0.69 grammes of nimetazepam.

2.  Facts admitted by the Defendant disclose that police officers had mounted an anti-narcotics operation in the vicinity of Park View Garden, Pik Tin Street, Shatin, at about 9 p.m. on 21^st June, 2010.  A private car with registration number PE9599 was parked outside the refuse chamber of Park View Garden.  At about 9:45 p.m., the Defendant and a female pushing a baby carriage in which there was a baby were seen proceeding to the vehicle.  The Defendant was intercepted for inquiry.  In his shoulder bag, the forged identity card as set out in the particulars of Count 1, as well as a Hong Kong driving licence bearing the same name as that on the forged identity card, a plastic bag containing 10 small plastic bags containing the cocaine as set out in the particulars of Count 2, a visa card in the name of the Defendant, cash and keys, were found.  The Defendant was asked why the identity card and driving licence bore a different name from that which appeared on the credit card.  The Defendant said that his true name was that which appeared on the credit card.  He had bought the forged identity card.  The police officer immediately declared arrest on him for the offences of possession of a dangerous drug and using a forged identity card.  Under caution, he admitted the dangerous drugs were for his own consumption, and he had bought the forged identity card with a view to avoid being arrested as he was wanted by the police.  The Defendant and the female were brought back to their residence in Park View Garden.  The premises were searched and in a locked drawer of the wardrobe in the bedroom, the dangerous drugs as set out in the particulars of Count 3 as well as 5 plastic bags containing traces of cocaine, 100 empty plastic bags, two electronic scales, a pair of scissors and $50,000 cash were found.  Under caution in a video recorded interview, the Defendant admitted that he had bought all the drugs for self-consumption.

3.  Forensic examination of the seized identity card and driving licence confirmed that the identity card was a forged one while the driving licence was genuine.  Forensic examination of the dangerous drugs seized also confirmed that the items seized from the Defendant were the dangerous drugs the subject of Counts 2 and 3.

4.  The street price of the dangerous drugs as set out in the particulars of Counts 2 and 3 is HK$83,000.

5.  I have carefully considered all that has been urged by Counsel on behalf of the Defendant as well as the contents of the letter from his co-habitee, Ms. Chan Yan-yan.  He is now aged 29 years.  Although he is not married, he is in a relationship with Ms. Chan Yan-yan, the female who was with him at the time of his arrest and they lived together.  They have a son together, who was born on 6^th March, 2010.  Ms. Chan has a daughter from her previous marriage, who is now aged 3 years.  Her husband had abandoned her and the child has only ever known the Defendant as her father.  It was the Defendant who supported them and he looked upon her daughter as his own.  Since his arrest, she has no longer been able to afford the rent of the flat they had been living in, and is now living in public housing and receiving CSSA as she is unable to work with two young children.  The Defendant used to run his own garage.  Her pregnancy with their son was an accidental one, and she had to stop work.  The Defendant feared he would not be able to support them, and the present offences were committed to give them a better living.  He is now very remorseful, as has been reflected by his pleas.

6.  The Defendant has a criminal record that dates back to 1999, when he would have been about 18 years old.  He has had 12 previous court appearances, with 25 previous convictions, although he has no previous drugs related convictions.  He is presently serving a total of 6 months’ imprisonment imposed on 27/09/2010 in TM 2084/2010 for offences of driving whilst disqualified and using a motor vehicle on a road without third party insurance.

7.  I am told that the Defendant had failed to answer his police bail in April, 2010 in respect of these offences and was a wanted person, and it was to avoid detection by the police that he had bought the forged identity card the subject matter of Count 1.  His son had been born in March, 2010.

8.  Apart from his pleas, I see no other mitigating factors which warrant any further discounts.                                                                                                   

9.  In HKSAR v. Ho Chak Ming, CACC 316/2009, the Court of Appeal considered the appropriate sentence for two counts of using a forged Hong Kong identity card contrary to Section 7A(1) of the Registration of Persons Ordinance, Cap. 177.  Lunn J., in delivering the judgment of the Court of Appeal, said :-

“24. In Li Chang Li ([2005] HKLRD 864), an appeal against sentence was referred to the Court of Appeal by the Court of First Instance. The appellant, a resident of the mainland and lawful visitor to Hong Kong, pleaded guilty to possession of a forged Hong Kong identity card. The magistrate imposed a sentence of 12 months’ imprisonment. At issue, was the appropriate sentence to be imposed upon a person lawfully in Hong Kong but possessed of a forged Hong Kong identity card contrary to section 7A(1) of the Registration of Persons Ordinance. In approving of the sentence imposed by the magistrate in the judgment of this court Yeung JA said :

“40. In our judgment, for the offence of possessing a forged identity card or identity card belonging to another, even if the offender’s presence in Hong Kong is lawful, the starting point upon a plea of guilty should ordinarily be 12 months’ imprisonment, so as to reflect the seriousness of the offence and serve deterrent purposes.

41. If the offender has actually produced or used a forged identity card or identity card belonging to another in order to conceal his identity, work illegally or unlawfully further his stay in Hong Kong, then the appropriate starting point upon a plea of guilty should be 15 months’ imprisonment.”

This Court was there approving the imposition of those sentences after pleas of guilty for which a discount of one third had already been applied.

25. Clearly, the applicant’s use of the forged identity card, firstly to check into the hotel, and secondly, in presenting it to the police on arrest was “in order to conceal his identity”. However, the focus of the concerns expressed in Li Chang Li have their basis in matters of immigration policy, illegal employment and like matters. In the instant case, the use of the forged identity card by the applicant when he checked into the hotel was to avoid risk of detention by the police for his earlier unlawfully trafficking in dangerous drugs and thereby to enable him to commit the very serious offences of which he is convicted.”

The Court of Appeal in Ho Chak Ming upheld the sentence of 15 months’ imprisonment imposed and also agreed with the view of the lower court that the conduct in these offences was entirely different from the conduct in the other charges faced by the applicant, which were offences of trafficking in dangerous drugs, and held that the judge was entitled to order the sentences to be served consecutively.

10.  On Count 1, the Defendant admitted that he had bought the forged identity card, and he had it in his possession to avoid police detection as he was a wanted person.  The facts are almost on all fours with those in Ho Chak-ming, supra.  The only appropriate sentence is an immediate custodial sentence, and on this count he is sentenced to 12 months’ imprisonment.

11.  In Attorney General v Rojas [1994] 1 HKC 342, Silke VP observed that the harm of cocaine was closely linked to the harm of heroin and it was held that the sentencing guideline for trafficking in heroin as set out in R v Lau Tak-ming [1990] 2 HKLR 370, was applicable to cocaine.  For up to 10 grammes, the sentence is 2 to 5 years’ imprisonment, and between 10 to 50 grammes, it is 5 to 8 years’ imprisonment.

12.  On Count 2, for the quantity of 2.04 grammes of cocaine, I take as a starting point 30 months’ imprisonment, discount it by one third to reflect his plea, and sentence him to 20 months’ imprisonment i.e. 1 year and 8 months’ imprisonment.

13.  On Count 3, for the quantity of 31.82 grammes of cocaine, I adopt a starting point of 6 years’ imprisonment. One-third discount is given for the guilty plea, reducing the sentence to 4 years’ imprisonment.  The sentence for Charge 3 is therefore 4 years’ imprisonment.

14.  I do bear in mind that the Defendant is presently serving a term of 6 months’ imprisonment.  I do bear in mind the totality principle of sentence.  The present offences were committed whilst he was on police bail for the driving offences. That must be viewed as an aggravating feature, warranting that the present sentences should be consecutive.  The conduct in the offence on Count 1 is very different from that for Counts 2 and 3 and warrants consecutive sentences as well.  But bearing totality in mind, I order that the sentences in Counts 2 and 3 be concurrent but consecutive to that in Count 1, which would make a total of 5 years’ imprisonment, and this sentence is to be consecutive to the sentence he is presently serving.