HKSAR v. KAM SIU HO

HCCC 315/2018

[2019] HKCFI 1650

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 315 OF 2018

-----------------

-----------------

--------------------------------------------

Transcript of the Audio Recording

of the Sentence in the above Case

--------------------------------------------

COURT:

The defendant pleaded guilty to one charge of occupier permitting premises to be used for the unlawful trafficking in dangerous drugs, contrary to sections 37(1)(a) and (2) of the Dangerous Drugs Ordinance.

The hotel room was rented by the defendant some six days before the police raid. In the morning in question, a male came out from that room, went to the rooftop and was found naked and delirious. A report was made to the police. That male was taken back into the hotel room where the defendant was found lying naked on the sofa.

Drugs and paraphernalia for consumption were found inside the room. Some drugs were found inside the drawer of a desk in the living room, some inside the pocket of a jacket placed on the cabinet below the television in the living room.

The defendant admitted under caution that he threw a party in the room the night before and consumed drugs there with his friends. Later, more drugs and cash in the sum of $9,000 were found inside the safe in the room. In short, the drugs seized included ketamine, cannabis in herbal form, ‘Ice’, nimetazepam, cocaine and 5-methoxy-N derivatives. The predominant drugs were 13.65 grammes of ketamine, 56.46 grammes of ‘Ice’ and 6.57 grammes of cocaine.

The total retail value of the drugs at that time was around $34,891.

The defendant is now aged 33. He has two items of previous convictions, all related to dangerous drugs. His last conviction was in December 2012 for trafficking in dangerous drugs, divan keeping and possession of Part 1 poison, for which he received a total of 56 months’ imprisonment. He was last discharged from prison on 17 June 2015.

By way of mitigation, I was told that he was a drug user since 2009 and upon his release from prison on the last occasion, he had worked for a finance company, making telephone cold calls for about six months until January 2017 and then he left his job in order to look after his father who eventually passed away in February 2017.

It was submitted on his behalf that he rented the room in order to have some fun with his friends, and Mr Leung also submitted on his behalf that he was not aware of the drugs found inside the safe. Counsel asked for leniency on his behalf.

In sentencing the defendant, I have taken into account mitigation forwarded by his counsel, his guilty plea. I have referred to the case of Lee Kwok Keung that this offence is one which varies greatly in its gravity but the extent of knowledge and involvement together with the amount of financial benefit are important considerations, and as said in that case, every case turns on its own facts.

In the present case, a very large amount of drugs of various varieties were found inside the hotel room. One fact that I cannot ignore is that that room was rented by the defendant six days before the incident.

The quantity of drugs lying around in the room with paraphernalia for consumption was relatively small when compared to the quantity of drugs found inside the safe. A large amount of cash was also found inside the safe with paraphernalia consistent with trafficking, also found inside the safe. Although I accept what the defendant said that he and his friends took some drugs for recreational purpose, it is not difficult to infer that trafficking activities were carried out inside that room as well, bearing in mind especially the nature of the drugs found lying around in the room such as ketamine and ‘Ice’ were the same as those found inside the safe.

Whilst there is no direct evidence linking the defendant to the renting of the room for the purpose of trafficking, one can safely infer that he was aware of the trafficking activities going on inside that room and further that he was aware that the quantity of drugs inside the room was not small and were of different varieties. I do not accept that he was totally ignorant of the drugs found in the safe as advanced by his counsel because he was the person who rented the room some six days ago.

The facts of the present case are not comparable to that of Ho Wing To. It cannot be said that the defendant only had a short duration of knowledge or that he had made efforts to evict those concerned with trafficking, and I do not accept that his knowledge was only restricted to the drugs found in the living room and in the pocket. Further, his previous conviction is certainly an aggravating feature which warrants an enhancement in sentence.

Had he been charged with and convicted with trafficking in this amount of drugs, he would be looking at a starting point of not less than 11 years’ imprisonment. Given the fact that the present offence of occupier permitting carried a maximum of 15 years unlike for trafficking which carried a life imprisonment sentence, I am of the view that 4 years’ imprisonment is an appropriate starting point which I shall enhance 6 months for his previous record to 4 years and a half.

As he had entered a timely plea, he is entitled to the full one-third discount and is sentenced to 3 years’ imprisonment.