HKSAR v. KWOK MING SING, CALVIN (ALSO KNOWN AS KWOK CHUN HO)

DCCC 1068/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1068 OF 2015

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REASONS FOR SENTENCE

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INTRODUCTION

1.  Before the defendant’s arraignment, the prosecution indicated to the court that of the two offences the defendant faced on the charge sheet, they would elect to proceed against him on the first one only, the second charge being a substantive offence falling within the scope of the conspiracy offence in the first charge.  The defence raised no objection to the prosecution’s election.  In consequence, the defendant was arraigned in respect of the first charge of conspiracy to traffic in a dangerous drug, a charge that was preferred against him according to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and sections 159A and 159C of the Crimes Ordinance, Cap 200.  He entered a plea of guilty to and was convicted of that charge, whereupon the second charge was left on the court file by operation of the law.

FACTS

2.  On the early morning of 20 August 2014, a team of police officers raided a room inside Flat A, 6^th floor, No.232 Wan Chai Road, Hong Kong, a room of which the defendant had been the lawful tenant since March 2014.  They found a blue and green mobile phone case containing three re-sealable plastic bags which contained what was subsequently found to be a total of 3.41 grammes of crystalline solid containing 3.29 grammes of methamphetamine hydrochloride (a salt of methamphetamine), commonly known as “ice”.  In addition, they seized, among other things, an electronic scale, a plastic spoon, and two “ice” flasks.  They arrested, inside the room, a male person Lam Chun-yu (“Lam”) and a girl Lau Pui Shan (“Lau”) for trafficking in a dangerous drug and for possession of instrument fit and intended for the inhalation of dangerous drugs.

3.  On 21 August 2014, the police arrested the defendant for the offence of trafficking in a dangerous drug.  Under caution, he told the police the following.  He had known Lam for over 10 years.  The week before the defendant’s arrest, another person Ng Wan Ming (“Sam”), a man in his fifties, took Lau to the room, and since then, Lau had refused to leave.  The defendant had seen the blue and green mobile phone case and what it contained the week before; it was Sam who brought about 3.5 grammes of “ice” to the premises; and Sam, Lau and the defendant had inhaled some of it.  When Sam left, he gave Lau the remainder of the “ice”.   The defendant knew Sam used his room to store the “ice”, which the defendant would inhale and would on occasion pay Sam some money for it, but not always.  On 19 August 2014, the defendant made a phone call to Lam; in that telephone conversation, Lam revealed he had “ice” at the room.  So the defendant returned to the room and inhaled “ice” there. 

MITIGATION

4.  The defendant was born in Hong Kong in February 1973 and is now 43 years old.  He has received education up to Form Two level and has worked as a cleaner.  According to his Antecedents Statement, he is divorced and has a son and a daughter aged five and six, respectively.  He suffers from high blood pressure and pleural effusion and is a drug addict.  His criminal records show he has eight conviction records involving a total of 21 charges, including robbery, triad-related offences, possession of and trafficking in dangerous drugs, and possessing and using false instruments.  His last conviction was entered against him in August 2003. 

5.  In his plea in mitigation, Mr Steven Kwan appearing for the defendant puts forward the following matters for the court’s consideration.  The conspiracy with which the court is concerned lasted for less than two weeks.  The criminal agreement involved social trafficking in a dangerous drug to one recipient only, ie., to Lau alone.  Mr Kwan submits that but for Lau’s involvement as the recipient of the “ice”, the case would have been a straightforward case of simple possession. In terms of culpability, Mr Kwan argues that the defendant’s major part in the agreement was the provision of a place in which others could consume dangerous drugs, and that the remaining “ice” was entrusted to Lau, says Mr Kwan, as a matter of necessity only because Sam had to leave.  Mr Kwan relies on two mitigation letters, one written by the defendant, the other by his employer. In brief, the defendant emphasizes he has been out of trouble for 13 years and that he misses his young children whose mother has abandoned them; the defendant’s employer certifies that the defendant has been in their employ as a cleaner for more than six years and that his work performance has been good.  In addition, Mr Kwan refers the court to the case of HKSAR v Wong Suet Hau & anor[1], where the Court of Appeal said:

‘In our opinion, while some of the “social” or “non-commercial” trafficking cases involving small quantities of drugs can properly be regarded, when all the circumstances are examined, as falling into the lower end of the sentencing scale applicable to the dangerous drug in question, we are firmly of the view that this factor should not, in itself, provide a general basis for imposing a lighter sentence, than would have been imposed for commercial trafficking. The “friend” who starts off or perpetuates another’s abuse of drugs, is as dangerous to the community as the commercial supplier of small quantities, who will generally traffic in drugs with those already addicted.’[2]

6.  Mr Kwan asks the court to consider a starting point closer to, or even below, the lower end of the applicable sentencing bracket.

REASONS FOR SENTENCE

7.  The true extent of the defendant’s involvement in this criminal agreement can be summarized as follows: he had to allow Lau to stay in his room, to whom he and Sam had agreed to supply “ice”, firstly, for her own use, and secondly, for her to keep in the room; for his part, the defendant would get some free “ice” to consume. 

8.  The conspiracy lasted, as Mr Kwan has rightly pointed out, for a short time only, and the amount of “ice” concerned was not considerable.  However, that is not to say that the offence of which the defendant – a repeat offender – stands convicted is any less serious: the dangerous drug concerned was “ice”.  In addition, Lau, to whom “ice” was (pursuant to the criminal agreement) provided, was a teenage girl, a fact which must have been obvious to the defendant.  The defendant subsequently absconded when granted bail and has remained at a large until his re-arrested in November 2015.  Social trafficking though the defendant’s case is, the court is not at all persuaded that a starting point at the bottom of the applicable sentencing bracket would be sufficient to reflect the culpability of the defendant’s offending. 

9.  The sentencing tariff for trafficking in zero to ten grammes of “ice” is between three and seven years’ imprisonment (see AG v Ching Kwok-hung[3], HKSAR v Capitania[4], and HKSAR v Tam Yi-chun (No.2) [5]). In all the circumstances of this case, the lowest possible starting point is one of three years and six months’ imprisonment.  The defendant is entitled to one-third discount for his guilty plea.  The final sentence is one of two years and four months’ imprisonment.  Little in the defendant’s background and the circumstances of the commission of the offence would warrant any further reduction in sentence.

CONCLUSION

10.  For the offence in the first charge of which he stands convicted, the defendant is sentenced to two years and four months’ imprisonment.