HKSAR v. LAU CHI KONG

DCCC 1142/2017

[2018] HKDC 704

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1142 OF 2017

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REASONS FOR SENTENCE

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1.  This is a case of police stop and search in the street leading to the discovery of drugs.  

2.  The defendant, a 41-year-old man, pleaded guilty to one count of possession; the drugs involved are 10.20 grammes of a crystalline solid containing 9.91 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.

3.  The prosecution case is simple and straightforward. On the night of 23 May 2017 at around 9:20, patrol officers spotted the defendant, in company with a woman, acting furtively in Tin Wan Estate, Aberdeen, and thus stopped them for questioning. As the defendant hadn’t got any ID papers on him, the couple were taken back to the police station for further enquiries.

4.  Back in the police station, officers found from the defendant’s front jeans pocket the drugs in this case, which were put in a single packet. The defendant at once told the officers that the drugs were for personal use and had nothing to do with his lady friend. Also found on him are 3 mobile phones and cash of $100.

5.  In the subsequent interview with the police, he said he bought the drugs for $4,000 from a man in Mong Kok area. Later, the police took the defendant back to his residence at Fa Yuen Street, Prince Edward, for a search but found no paraphernalia for taking ‘Ice’.

6.  The street value of the drugs seized is estimated to be slightly above $3,000.

7.  The defendant, separated from his wife about two years ago, has a 15-year-old son who is left in the care of the wife and the defendant’s mother.

8.  Contrary to what he told the police in the antecedent statement taken a few days after his arrest in which he said he was out of job at the time of his arrest, the court heard in mitigation that the defendant in fact had a job working as a casual transportation worker earning on average $9,000 a month.  

9.  Admittedly, the defendant has an appalling criminal record; he has 24 prior convictions over the past 24 years. Almost half of those are drug related – 8 possessions (first conviction in 1995), one possession of apparatus and one trafficking. The other half are mainly to do with dishonesty.

10.  He is currently serving a 17-month prison term for theft and immigration offence (Using an ID card relating to another person), the sentence of which was handed down in February 2018 which is subsequent to the commission of the present offence.

11.  And because of the fact that he is serving a prison term more than 9 months at the moment, the court is, in the circumstances, entitled to proceed to sentence him straightaway without first obtaining a DATC report. (See S 54A (1A) of the Dangerous Drugs Ordinance)

12.  Defence counsel has helpfully submitted a number of authorities for the court’s consideration concerning the proper approach to be adopted (Mok Cho Tik CACC 165/2000), and some actual sentencing cases on defendants in similar situation (Lam Suk Ming CACC 97/2014, Ho Chi Fai HCMA 231/2015).

13.  Despite the guidance given by the higher court, it is not to be expected that the lower court should do a strict arithmetic comparation between cases to arrive at the sentence; but rather, as each case turns on its own facts, it is with the guidance in mind the court proceeds to sentence taking into account all the relevant factors of the case in hand.

14.  The 3-step approach as stipulated in Mok’s case:-

(1)	-	To determine where the starting point should lie in the range of 12 – 18 months;
(2)	-	To adjust the starting point upward for the risk factor, if any;
(3)	-	To reduce the term by taking into account the mitigating factors.

15.  In Mok’s case, when dealing with point 1 above, the higher court has this to say:-

“Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be.”

16.  In Chu Hoi Yan Amy CACC 119/2014, the Appellate Court seemed to accept the evidence of daily dosage of an ordinary ‘ice’ abuser, it is stated in paragraph 12 of the judgment that:-

“according to an expert on ‘ice’ abuses (professor Tang), the average daily dosage of ‘ice’ was 0.13 g and the range was 0.1 g to 2 gs per day. Professor Tang accepted that a long-time addict would require more and more ‘ice’ and that the range could be wide.”

17.  In the present case, however, there isn’t an awful lot of evidence for the court to work out or to say with some confidence the daily dosage of the defendant. Notwithstanding this, just by looking at the amount, I believe that it would last the defendant for quite some time. 

18.  On the question of recidivism, the defendant is undoubtedly a repeat offender of drug offences.

19.  Based on the quantity of drugs and his recidivism, I take 15 months as starting point.

20.  Now turning to the risk factor, he first told the police that he was unemployed and now he told the court he had a casual transportation job earing $9,000 a month – which is true?

21.  At the time when he was stopped by the police in the present case, he did not have his ID card with him; subsequent to this case, he was convicted by court of using an ID card relating to another person for which he was given a 15 months’ prison term.  Common sense tells us that people without ID card in Hong Kong would have difficulty in securing a job.

22.  The court has indicated to the defence that based on the evidence before the court, it’s not prepared to accept that the defendant had a job at the material times, but willing to hear further evidence to determine the issue. Having taken instructions from the defendant, defence counsel told the court that there would not be further evidence. 

23.  Taking everything into account, I don’t believe that the defendant was in any gainful employment at the time of his arrest. Put in a different way, I think what he told the police at the time of his arrest was the truth – he was unemployed.

24.  His last conviction concerning drugs was in 2014, which was trafficking and he was sentenced to 12 months’ imprisonment. Then came the present offence in 2017 – he was found to possess not a small amount of drugs in a place far away from his home. Given all this, I would say the risk that some of the drugs would find its way into the hands of others is very high, and for that, I would add 12 months on top, which takes the starting point to 27 months.

25.  Insofar as his mitigation is concerned, apart from his timely guilty plea, there isn’t anything of substance. Giving the appropriate discount, the starting point is reduced to 18 months. There being no reason for further reduction, the defendant is sentenced to 18 months’ imprisonment.

26.  As the defendant is currently serving a 17-month term for other offences, those offences are separate and distinct from the present one, the terms in theory should be made consecutive to each other, but for the totality principle, I order that 15 months be run consecutively to his existing term.