HKSAR v. KOW CHI MING (ALSO KNOWN AS KOO CHI MING)

DCCC 927/2017
[2018] HKDC 232

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 927 OF 2017

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to two charges of trafficking in heroin, contrary to section 4 of the Dangerous Drugs Ordinance and one charge of possession of methamphetamine hydrochloride (“ice”), contrary to section 8 of the Dangerous Drugs Ordinance[1].

2.  In summary at about 1715 hours on 18 July last year the police intercepted the defendant as he was leaving Wah Chak House in Chak On Estate, Sham Shui Po. 

3.  Upon search the police found between the defendant’s trousers and his waist one purple pellet containing 0.35 gramme of heroin (charge 1). 

4.  The police then conducted a search at the defendant’s home on the 7th floor of Wah Chak House.  Upon search the police found nine red pellets; two purple pellets; three white pellets and one plastic bag containing a total of 4.17 grammes of heroin and three plastic bags containing a total of 0.63 gramme of ice (charges 2 & 3). 

5.  The police also found an electronic scale; a metal spoon and a straw all of which contained traces of heroin together with a lighter and twenty-three re-sealable plastic bags.   

6.  Under caution and in a subsequent video recorded interview the defendant admitted, inter alia, that he bought all the heroin from Ah Man; Ah Man gave him the ice for free; he would consume the ice by smoking; he took the purple pellet downstairs to sell to a friend called Ah Chuen; and he bought extra heroin from Ah Man for resale to earn a bit of money. 

Mitigation

7.  In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Davies. 

Trafficking in a dangerous drug

8.  In R v Lau Tak Ming[2]the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment. 

9.  I am satisfied the appropriate starting point after trial for 0.35 gramme of heroin is 2 years’ imprisonment and for 4.17 grammes of heroin is 3 years and 3 months’ imprisonment. 

Own use

10.  Mr Davies says that part of the heroin was for the defendant’s own consumption. The defendant is unable to say how much he would consume and how much he would sell.  Mr Davies asks the court to accept that up to half of the heroin was for the defendant’s own consumption.    

11.  Taking into account that the defendant has a criminal record for possession of drugs, albeit twenty years ago; the police found a straw with traces of heroin, which is indicative of own consumption; in the video interview the defendant told the police he consumed one purple pellet and one red pellet of heroin each day and in the antecedents said he was a drug addict since he was twenty-five, I am prepared to accept that a small quantity of the heroin may have been for the defendant’s own consumption.      

12.  As indicated in court I do not accept that as much as half was for the defendant’s own consumption.  Mr Davies informs the court the defendant does not wish to give evidence in support of the claim that up to half was for own consumption.

13.  In deciding how much weight should be attached to the fact some of the heroin may have been for the defendant’s own consumption  I have considered the decision in HKSAR v Wong Suet Hau[3], in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang[4]. 

14.  In Wong Suet Hau the Court of Appeal said that in most cases the difference will be slight[5].  From the decided cases a discount of between 10-25% from the basic starting point has been held appropriate where a significant portion of the drugs were for own consumption.

15.  Taking into account that the defendant was arrested when he was about to sell one pellet of heroin and in his home part of the heroin had already been divided into fourteen pellets, which the defendant would sell for between $160-$400, I am not satisfied that a significant portion was for own consumption.  

16.  Taking into account the quantity of heroin; the packaging; the defendant was arrested on the way to sell one pellet of heroin; possession of drugs carries a sentence in any event and the latent risk factor, I am satisfied the starting point on charge 2 should be reduced by 3 months to one of 3 years’ imprisonment, which is equivalent to a discount of almost 8% from the basic starting point.

Aggravating feature

17.  In Lau Tak Ming the Court of Appeal said a sentencing judge may properly take into account previous history of narcotic offences.  The defendant has previous convictions for drug offences and one for trafficking. The trafficking conviction being almost twenty years ago I do not enhance the sentence by reason of the defendant’s criminal record. 

18.  Giving the defendant full credit for his pleas of guilty reduces the sentence on charge 1 to 1 year and 4 months’ imprisonment and on charge 2 to 2 years’ imprisonment.   

Possession of ice

19.  In HKSAR v Mok Cho Tik[6]the Court of Appeal said the starting point for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months but this does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant.  Taking into account the quantity of ice was 0.63 gramme which cannot be described as very small I am satisfied a starting point of 9 months’ imprisonment is appropriate. 

Latent risk

20.  Taking into account the ice was divided into three separate packets and that the defendant was involved in trafficking heroin, I am satisfied there was a clear latent risk the drugs could have fallen into other hands.  In the circumstances I increase the starting point by 3 months to 12 months’ imprisonment. 

21.  Giving the defendant full credit for his plea of guilty reduces the sentence to 8 months’ imprisonment.

Totality

22.  I accept the heroin for charge 1 is from the same cache of drugs for charge 2.  I am satisfied in the circumstances that concurrent sentences are appropriate for charges 1 and 2.  The possession charge being for a different drug I am satisfied a partly consecutive sentence is appropriate for charge 3. 

23.  I am satisfied a total sentence of 2 years and 2 months’ imprisonment properly reflects the defendant’s overall criminal culpability on the three charges and takes into account the defendant’s personal circumstances and the seriousness of the offences, including that the defendant was trafficking in heroin and at the same time possessing ice[7].  

24.  The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 4 months’ imprisonment concurrent to charge 2.

Charge 2 – 2 years’ imprisonment; and

Charge 3 – 8 months’ imprisonment with 2 months consecutive and 6 months concurrent to charges 1 & 2.