HKSAR v. LEE SIU PO

DCCC 587/2022

[2023] HKDC 475

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 587 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 (charge 1). The subject-matter of the charge involves 11.1 grammes of cocaine.

2.  He pleaded not guilty to the other count of trafficking in a dangerous drug (charge 2), which was ordered to be kept on file and not to be proceeded with without the leave of the court or the Court of Appeal.

The facts

3.  Full particulars of the offence are set out in the amended summary of facts admitted by the defendant today.  In gist, this is a straightforward roadblock stop and search case.

4.  At about 2155 hours on 10 January 2022, Police officer was performing roadblock duty near Lamppost GC1080, Kwai Chung Road when the defendant was intercepted for enquiry.

5.  The defendant was driving a light goods vehicle (hereinafter called “the Vehicle”)  at the material time.

6.  Upon a body search of the defendant, 5 transparent resealable plastic bags containing 0.99 grammes of a solid containing 0.94 grammes of cocaine were found in the defendant’s left shoe and 6 transparent resealable plastic bags containing 1.11 grammes of a solid containing 0.93 grammes of cocaine were found in the defendant’s right shoe.

7.  Upon inquiry, the defendant stated that the cocaine were for sale and that there were more cocaine for sale onboard. 

8.  Upon a search of the Vehicle, 34 transparent resealable plastic bags containing 6.78 grammes of a solid containing 6.31 grammes of cocaine and 14 transparent resealable plastic bags containing 2.65 grammes of a solid containing 2.21 grammes of cocaine were found in a glove at the offside door compartment and in the compartment between the driver and the front passenger’s seats, 4 transparent resealable plastic bags containing 0.75 grammes of a solid containing 0.71 grammes of cocaine were found.

9.  At the sun visor of the driver’s seat, HK$5,000 cash were found.  The defendant admitted that the cash was the sale proceeds of selling cocaine on the date of arrest and that he had been selling dangerous drugs for 3 days.

10.  The defendant further admitted that all the cocaine were taken by him from Sham Shui Po and he was going to sell the same.

11.  The street value of the cocaine was HK$9,723.60.

Background and criminal records

12.  The defendant is 25 years old.  He was born in Hong Kong and he received education up to Form 6 after which he completed one semester of Civil Engineering at the Ivy College of education.  He has a clear criminal record.

13.  Mr McGuinniety, counsel for the defendant, told the court that the defendant’s upbringing was fraught with difficulty being brought up by his mother, as his father whom he has never seen left the marital home early and never returned and that owing to financial difficulties, the defendant quitted college early and worked as a delivery driver working 6-7 days per week for which he customarily earned between HK$15,000 – HK$25,000 depending on available overtime work.  He would contribute to his mother a minimum of HK$5,000 monthly.

Mitigations

14.  In mitigation, Mr McGuinniety asked for a lenient sentence because the defendant pleaded guilty and has expressed genuine remorse.

15.  Mr McGuinniety further submitted that though at the time of the offence the defendant was not a drug addict, he would consume a small amount of the drugs in his possession and that 3 grammes of the drugs in question would have been used for personal consumption.  Urine test report was submitted.

16.  Lastly, the defence also submitted letters of mitigation written by the defendant, his mother, his elder brother and friends.  The defendant has shown regret and remorse in his letter and he promised not to re-offend in the future. The mother asked for leniency for her son and she said that the defendant promised her that he would reform and become a useful person after serving his sentence.

Sentencing considerations

17.  Trafficking in a dangerous drug is a very serious offence and those involved with trafficking in dangerous drugs should know that the maximum sentence is life imprisonment and a fine of HK$5,000,000.  Those who are convicted of trafficking in dangerous drugs would expect no mercy from the court.

18.  The courts have equated for sentencing purposes cocaine with heroin[1]. 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 between 10 and 50 grammes falls within the range of 5-8 years’ imprisonment. 

19.  On a strictly mathematical approach a starting point of just over 5 years would be appropriate for trafficking in 11.1 grammes of cocaine.  Taking into account the defendant’s young age and this is the first time he has committed any offence, I am satisfied a starting point of 5 years (namely 60 months)  is appropriate.

20.  The Court of Appeal in Hong Kong have already said that general speaking, family circumstances is not to be accepted as mitigation for a serious offence like this.  For a long time, the court has said repeatedly that it would not accept economic reasons for committing crimes as serious as the present.

21.  The court was urged to adjust the sentence to reflect that part of the drugs in question namely 3 grammes were for self-consumption.

22.  I now come to the mitigation of self-consumption.  The applicable principles can be found in HKSAR v Wong Suet Hau & other [2002] 1 HKLRD 69.

23.  The defence informed this court that the defendant would not give evidence in relation to the claim of self-consumption. Clearly, if he is not up to proof, he may lose the 1/3 discount.

24.  The defence accept that the burden lies on the defence to persuade this court as to whether the subject drugs or any part of the subject drugs were for self-consumption.

25.  Mr McGuinniety has 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 McGuinniety.

26.  The authorities recognize that self-consumption can be a mitigating factor in Wong Suet Hau 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)  …”. 

27.  Further, it must be borne in mind 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.”

28.  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).

29.  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).

30.  In respect of the defendant’s claim of self-consumption, 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.

31.  Bearing in mind that the question is not whether the defendant would consume drug(s)  on other occasions, but whether any part of the subject drugs would be consumed by the defendant.

32.  In the present case, given the circumstances under which the drugs were found; the number of packets; the way they were packaged; the value ($9,723.60)  vis-à-vis the suggested earning capacity of the defendant; 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, and I am not satisfied that any of the drugs in question was for his self-consumption in light of all the circumstances in this case.

33.  In my view, the defendant was more a 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 any part of them for self-consumption though urine test report showed positive result of cocaine.

34.  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 the above factors. 

35.  Eventually, the only effective mitigation is therefore his timely plea, for which he would be given a full one-third discount from the sentence.

36.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 40 months’ imprisonment.