HKSAR v. FONG KIN MAN

DCCC 369/2020

[2020] HKDC 755
(heard together with DCCC 422/2020)
([2020] HKDC 754)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 369 OF 2020

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REASONS FOR SENTENCE

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Background

1.  There are two cases before me.  In both cases, the defendant pleads guilty to the charges against him, namely, one charge of burglary, contrary to section 11 of the Theft Ordinance (DCCC 369/2020), and one charge of trafficking in a solid containing 6.46 grammes of heroin hydrochloride, 0.46 grammes of midazolam, contrary to section 4 of the Dangerous Drugs Ordinance[1] (DCCC 422/2020).

Summary of admitted facts

DCCC 369/2020

2.  In summary, the burglary took place between 14 March to 22 March 2019 in Room B of an old residential building in Lai Chi Kok.  At the material time, the door to the room was locked and a window type of air-conditioner was installed there, which was worth $2,500.  The room became vacant since 16 January 2019.  Renovation work was conducted between 12 February 2019 and 4 March 2019.  On 14 March 2019, the owner of the room found the metal gate could not be locked.  She used a padlock and a plastic chain to lock up the metal gate.  On 22 March 2019, the owner returned to the premises and found that the plastic chain and the padlock were missing.  The air-conditioner was also missing.  Fingerprints were lifted on the door and the metal gate and were found to be matched those of Mr Fong’s DNA.  Mr Fong admitted that he entered the premises as trespasser and stole therein one air-conditioner. 

DCCC 422/2020

3.  On 16^th February 2020, around 11 pm, the defendant was stopped by police officers outside a public toilet in Shek Kip Mei.  Upon search, 40 packets containing a total of 6.46 grammes of heroin hydrochloride and 34 tablets containing 0.46 grammes of midazolam were found.  Under caution, he admitted that he had sold a few packets of “white powder”.

4.  The estimated street value of the drugs was around $8,949.22.  The defendant possessed the drugs for the purpose of unlawful trafficking.

Mitigation

5.  The defendant is now aged 47, married with 2 children.  He is a construction worker earning around $20,000 per month (but antecedent statement reveals that he was unemployed at the time of arrest).  He has 2 previous convictions of theft in 2018 and 2019 and financial penalty was imposed in both cases. 

6.  In passing sentence, I have carefully considered the written and oral submissions of Mr Davies, including that “although the premises is a domestic unit, the unit was not occupied at the time of the offence… and the premises are similar to a construction site.”; “The defendant has been a drug user for around 2 years and a quantity of the drugs would have been for his own use.”  This is his first conviction of burglary and drug related offence. 

Guidelines

DCCC 369/2020

7.  In respect of DCCC 369/2020, the normal starting point for domestic burglary is 3 years' imprisonment.  I accept that the premises were at the material time under renovation, hence not that kind of occupied domestic premises.  Although the premises were yet to be occupied, the metal gate was locked, it did not in any way serve as an invitation for the defendant to go in to steal. 

8.  I accept that there is a slight element of "opportunistic burglary".  The premises were unoccupied and under renovation.  The property stolen is an air-conditioner. Hence, I adopt a lower starting point of 2.5 years' imprisonment for the defendant.  With his timely guilty plea, the sentence is reduced to 20 months.

DCCC 422/2020

9.  In respect of DCCC 422/2020,  in R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[2].  On a purely arithmetical approach a starting point of just over 3 years and 10 months’ imprisonment would be appropriate for trafficking in 6.46 grammes of heroin. 

10.  The authorities recognize that self-consumption can be a mitigating factor, see HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and, more recently, in HKSAR v Chow Chun Sang [2012] 2 HKLRD 112.  A further discount of 10 to 25% can be given depending on the circumstances of a particular case.  The notion of latent risk and that even possession of drugs for self-consumption itself may carry a term of imprisonment are also factors to be considered and, as emphasized in Wong Suet Hau (para 34 (4)), it “may well offset much of the practical value of the mitigation (of self-consumption) …”. 

11.  Be it also remembered that the amount for self-consumption must be “a significant proportion” of the seized drugs.  Any quantity less than a significant proportion would make no or practically very little difference to the sentence. In Chow Chun Sang, Yeung VP said in the judgment:-

“We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on the circumstances, fall somewhere between 10 per cent and 25 per cent of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of drugs involved, the proportion of drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated in the background and criminal record of the defendant.”

12.  In HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572, the Court of Appeal specifically remarked that such a discount would only be available for cases where a significant proportion of the dangerous drugs in which the defendant trafficked was for self-consumption (see para 26).

13.  In respect of the defendant’s claim that there was a small amount of the drugs for his own consumption, I had told Mr Davies, in the course of these proceedings, that in HKSAR v Liu Ming Sze [2017] 1 HKLRD 297 and HKSAR v Kong Tat Lung [2018] 5 HKLRD 635, the Court of Appeal had already pointed out that the range of discount suggested in HKSAR v Chow Chun Sang was not relevant unless a significant proportion of the drugs in question was for the defendant’s self-consumption.  If it was the defendant’s case that not a significant portion was involved, it would then be a matter of discretion for the sentencing judge to decide whether any reduction should be granted for this self-consumption element and if so, the range of the discount given.

14.  In the present case, given the circumstances under which the drugs were found; the number of packets (56); the way they were packaged; the value ($8,949.22) vis-à-vis the amount of cash ($2,288.50) found on the defendant’s person; the absence of previous conviction of drugs related record of the defendant; the absence of equipment fit and intended for self-consumption; the explanation of the defendant gave under caution, I have grave doubts in the absence of further evidence, that the defendant would have any portion of the drugs for his own-consumption.  Mr Davies has sensibly indicated that he did press for reduction on the claim for self-consumption. Therefore, all that was before me was the assertions made by the defendant after his arrest and a claim now made through his counsel Mr Davies. 

15.  In my view, the defendant was more a courier or small scale retailer delivering the drugs to others at the time of his arrest, not that he had himself bought the drugs and would keep them for self-consumption. 

16.  I should say that even if there were indeed a small portion of the drugs for the defendant’s own use, I would not consider it appropriate to exercise my discretion to reduce his sentence because of this factor. 

17.  Counsel for both parties were referred to the Court of Appeal decision in HKSAR v Cheung Wai Man [2019] 1 HKLRD 817, in particular, as stated very clearly in the judgment, that “mere assertions by counsel from the bar table, unless agreed or not in dispute or contention, will generally not suffice” to substantiate the mitigation of self-consumption and therefore there is obviously a need to have “credible and reliable information and material, that fully and properly substantiates the proportion of the drugs intended for self-consumption” (see paras 54 and 60). 

18.  I will sentence the defendant on the basis that 6.46 grammes of heroin was involved.  However, given the small quantity of midazolam, I only focus on heroin in sentencing[3].

19.  I adopt a starting point of 3 years and 10 months’ imprisonment for the offence of drug trafficking.

20.  However, the additional aggravating factor is that the defendant committed this offence while on bail regarding the burglary offence.  That justifies the upward adjustment to 4 years’ imprisonment. 

21.  Giving the defendant full credit for his plea of guilty reduces the sentence to 2 years and 8 months’ imprisonment. 

22.  Having considered the principle of totality and to avoid the total sentence being excessive, I order that 10 months of the burglary offence be made consecutive to the drug trafficking offence, making it a total sentence of 3 years and 6 months’ imprisonment for both cases. 

[1] Cap 134

[2] [1990] 2 HKLR 370

[3] HCCC 316/2019