HKSAR v. LI MAN FAI

DCCC 625/2023

[2024] HKDC 593

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 625 OF 2023

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REASONS FOR SENTENCE

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Charge

1.  The defendant pleaded guilty to an offence of trafficking in a dangerous drug, namely 14.00g of a mixture containing 9.28g of heroin hydrochloride, and admitted the amended summary of facts.

Facts

2.  In gist, the defendant admitted that at about 0034 hours on 11 December 2022, the defendant was with a group 5 persons.  He was intercepted by police officer PC 15171 (PW1)  outside No. 31 Argyle Street, Mongkok.  At that time, the defendant was seen acting furtively at a crosswalk.  Upon seeing PW1, the defendant forthwith picked up his mobile phone and placed it against his ear.  He was also seen to be constantly looking around.

3.  Upon enquiries, the defendant claimed he was going to ‘Yum Cha” with his friends.  PW1 conducted enquiries via his beat radio and discovered that the defendant was a wanted person.  PW1 escorted the defendant to a police vehicle nearby. 

4.  Whilst the defendant was on board of the police vehicle and PW1 was assisting him to fasten his safety belt, the defendant suddenly lied down onto the seat with his head tilted towards the window and with both his hands placed behind his back.  PW1 saw that the defendant had slowly inserted his fingers into his pants.  PW1 stopped this.

5.  PW1 then conducted a body search on him.  PW1 discovered a glob of white colour tissue paper tied up by a piece of rubber band concealed in the defendant’s underwear placed near his bottom.  PW1 unfolded the glob of tissue and found one transparent re-sealable plastic bag containing the dangerous drug particularised in the charge. 

6.  The defendant was also found to have cash HK$5,674.50 and a smart phone.

7.  At around 0048 hours on 11 December 2022, the defendant was arrested.  During a record of interview, the defendant admitted under caution that the packet of ‘sei chai” (referring to heroin hydrochloride)  found on him was for his own consumption. 

8.  During a subsequent video recorded interview taken on the same day, the defendant admitted, inter alia, the following:

(a)  he was receiving monthly Comprehensive Social Security Assistance (CSSA)  in the sum of HK$7,000;

(b)  he claimed that he had suffered from heart disease and he needed to consume dangerous drugs for easing his pain;

(c)  he was well aware that ‘sei chai’ was heroin hydrochloride which is a type of dangerous drug;

(d)  he purchased the subject dangerous drug in Thistle Street Garden at around 2300 hours on 11 December 2022 for HK$7,000, and it was for his own consumption;

(e)  he has a 14-year-old daughter who is under his care; and

(f)  the cash and the smart phone had nothing to do with the dangerous drugs.

9.  The estimated street value of the subject dangerous drug is around HK$8,602. 

10.  At all material times, the defendant unlawfully trafficked in the dangerous drug particularized in the charge.

Antecedent and criminal records

11.  The defendant has 19 previous criminal convictions including one record of possession of dangerous drug in 1997 and two records of trafficking in dangerous drugs in 2008.  His last conviction was in 2019 involving an offence of unlawful possession of dutiable goods.

12.  The content of the antecedent statement in respect of his age, education and family is the same as shown in the written mitigation.

Mitigation

13.  The defendant is represented by Ms Stephanie Ko.  She submits that the defendant is now aged 62, a retiree.  He received education up to primary 4 level.  He is divorced but enjoys an amicable relationship with his ex-wife and a close relationship with his son aged 41, a hair stylist, and his daughter, aged 16, a Form 3 student.  Prior to his arrest, he lived with his children in To Kwa Wan.  He relies on CSSA and his savings for his daily expenses.

14.  Ms Ko further submits that the defendant suffers from various diseases including heart disease and lung disease. 

15.  Around the time leading up to the defendant’s arrest, he was experiencing some body aches and pains due to his medical conditions.  The defendant foolishly thought that the consumption of dangerous drugs could alleviate his pains. 

16.  Ms Ko contends that one-third of 9.28g of heroin was intended for his self-consumption. In fact, the defendant admitted that the seized drugs was for his self-consumption upon arrest. As such, it is submitted, that the defendant is entitled to have a discount of sentence: HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69.

17.  In response to the court, Miss Poon, prosecuting counsel, submits that the police conducted a house search and no paraphernalia for drug consumption was found.

The defendant’s claim that 1/3 of the heroin was for self consumption

18.  Having considered the facts and the mitigation put forward, I indicate to Ms Ko  that the court is not prepared to accept that the defendant would consume 1/3 of the seized heroin for reasons that:

(a)  The defendant admitted the facts that he trafficked in all the drugs in the charge.

(b)  The defendant claimed that he paid HK$7,000 for the drug. I have doubts that he could pay only $7,000 for the seized heroin as the estimated street value is HK$8602, HK$1,600 more than the purchase price.

(c)  I do not believe that he would have the money to buy this amount of heroin bearing in mind he is a CSSA recipient and his monthly CSSA was HK$7,000. He would not have spent the whole sum of CSSA income on drug. Besides, he admitted that his daughter is under his care. It means she relies on him financially.

(d)  The defendant claimed that he bought the drug at 2300 hours. He was intercepted 1.5 hours later, and he still had HK$5,674.5 cash on him. It meant that he had almost HK$12,700 with him before he bought the drug. I do not believe he would have brought such a large sum of money with him on that night.

(e)  The heroin was seized from the defendant at 0045 hours. At the time when the drug was found, he was carrying it in a public place in Mongkok whereas his reported address, as shown in the mitigation, is in To Kwa Wan. If it be that he had part of the drug in question for his own consumption, one would expect him to have taken that part back home rather than carrying the drug and hanging out with his friends in the public streets where there was a higher risk of the drug being found when stopped by the police.

(f)  The criminal record does not show him to be a habitual user of drugs.

19.  When all these matters are considered, I completely reject that any significant amount of the heroin found was for the defendant’s own consumption.  I consider what Ms Ko has said on behalf of the defendant that he would consume 1/3 of the heroin is a bare assertion unsupported by confirmatory evidence.  I consider that a Newton hearing is required, but Ms Ko does not pursue for one.

20.  As such, there is no evidence before me that the defendant would consume 1/3, a significant proportion, of the seized heroin.  He is therefore not entitled to have sentence reduction of 10% to 25% as recommended (see: HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572).

21.  Even if it might be that the defendant would have a small amount of the heroin for himself, no doubt, possession of a dangerous drug itself carries with it a term of imprisonment and there is also the latent risk factor. Therefore, in this case, I do not consider this self-consumption claim would meaningfully or materially affect the sentence and I do not see any basis for reduction because of this claim (see: HKSAR v Liu Ming Sze [2017] 1 HKLRD 297; Wong Suet-hau).

Reasons for Sentence

22.  In sentencing, I have considered the facts of the case and the mitigation thoroughly advanced by Ms Ko. 

23.  In R v Lau Tak Ming [1990] 2 HKLR 370, 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 10g is between 2 and 5 years’ imprisonment.  The starting point for trafficking in 9.28g of heroin would be 57 months’ imprisonment.

Sentence reduction

24.  The defendant has entered a timely plea and is therefore entitled to a one-third discount of sentence from the starting point. 

25.  As explained above, I reject the defendant’s claim that he would consume a significant portion of the seized heroin.  And, I will not exercise my discretion to reduce the sentence assuming that the defendant would consume only a small amount of the heroin. 

26.  The defendant himself and his family members ask this court to give him a lenient sentence because the defendant has serious health problems. 

27.  It is noted that one of the 3 medical records, printed in May 2017, shows that he suffered minor coronary artery heart disease at that time.  The next one is an updated medical report dated 13 March 2024. It described that the defendant had been under the care of Queen Elizabeth Hospital from November 2010 to 2013 for ischaemic heart disease.  He presented with chest pain.  He was clinically stable all along without symptoms of heart failure.  He was found to be clinically stable and treated with aspirin and oral nitrate.  The third one dated 22 February 2024 did not reveal that he suffered from serious illness. 

28.  Having considered the defendant’s health condition, I do not consider that it amounts to a mitigating factor: R v Ho Mei-lin [1996] 4 HKC 491.

29.  There is no other valid mitigating factor justifying a further reduction of sentence. 

30.  The defendant is sentenced to 38 months’ imprisonment.