HKSAR v. AU MAN CHUNG

DCCC 1107/2021

[2022] HKDC 1458

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1107 OF 2021

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to the following charges:

Charge 1: Possession of an offensive weapon in a public place, contrary to section 33(1)  and (2)  of the Public Order Ordinance, Cap. 245, namely a device capable of producing voltage.

Charge 2: Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, namely 4.91 grammes of a crystalline solid containing 4.66 grammes of methamphetamine hydrochloride (“ICE”).

Charge 3: Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, namely 4.56 grammes of a crystalline solid containing 4.15 grammes of methamphetamine hydrochloride (“ICE”).

Charge 4: Possession of apparatuses fit and intended for the inhalation of a dangerous drug, contrary to section 36(1)  and (2)  of the Dangerous Drugs Ordinance, cap, 134, namely one inhaling device and one glass bottle with one stopper and inserted with one plastic tube fitted into one plastic straw, fit and intended for the inhalation of a dangerous drug, namely methamphetamine.

SUMMARY OF FACTS

2.  On 21 May 2021 at around 3:20 a.m., police officers were on patrol along Argyle Street. The defendant was spotted looking around furtively with his hands trembling. When the police approached the defendant, he suddenly fled towards Fife Street. The defendant was eventually subdued.

3.  A body search was conducted on the defendant outside Mandarin Court, Nos. 647-651 Shanghai Street, Mong Kok, Kowloon, with the following items found and seized: -

(i)  A device capable of producing voltage (“E1”)  in the defendant's brown shoulder bag (Charge 1); and

(ii)  Two transparent re-sealable plastic bags containing a total of 4.91 g of a solid containing 4.66 g of methamphetamine hydrochloride (“E2”)  in the right front pocket of the defendant's blue jean shorts (Charge 2).

4.  The defendant was then arrested for “possession of arms without licence” and “possession of a dangerous drug”.

5.  The defendant was found with 2 mobile phones and cash of HK$288.

House search

6.  At around 11:02p.m., the defendant was escorted back to his flat at Room 2303, Yee Yat House, Tsing Yi Estate, Tsing Yi, New Territories (“the Flat”). Upon house search, the following items were found and seized at the Flat:

(a)  In the second drawer of a blue cabinet placed on a shelf near the entrance door

(i)  7 plastic bags containing a total of 0.73 g of a solid containing 0.70 g of methamphetamine hydrochloride (“E3”)  (Charge 3);

(b)  Near the blue cabinet placed on a shelf near the entrance door

(ii)  One plastic container containing a total of 0.18 g of a solid containing 0.17 g of methamphetamine hydrochloride (“E4”)  (Charge 3);

(c)  On a table near the entrance door

(iii)  One plastic bag containing a total of 0.46 g of a solid containing 0.38 g of methamphetamine hydrochloride (“E5”)  (Charge 3);

(iv)  One silver-black electronic scale (“the Scale”);

(v)  One inhaling device containing a total of 0.35 g of a solid containing 0.24 g of methamphetamine hydrochloride (“E6”)  (Charge 4);

(d)  On top of the refrigerator

(vi)  One glass bottle with one stopper and inserted with one plastic tube fitted into one plastic straw (“E7”)  (Charge 4);

(vii)  One plastic bottle containing a total of 1.33 g of a solid containing 1.19g of methamphetamine hydrochloride (“E8”)  (Charge 3); and

(viii)  One funnel containing a total of 1.86 g of a solid containing 1.71g of methamphetamine hydrochloride (“E9”)  (Charge 3).

7.  The defendant was arrested for “trafficking in a dangerous drug” and “possession of apparatus fit and intended for inhaling dangerous drugs”.

Video-recorded Interviews

8.  The defendant admitted, inter alia, under caution in the 1^st video-recorded interview conducted on 22 May 2021 that:

(i)  He was unemployed at the material time but a few days ago, he did have a job;

(ii)  In the small hours of 21 May 2021, he had just purchased some dangerous drugs in Mong Kok;

(iii)  He fled when seeing a group of police officers as he had “grudges” against the said officers;

(iv)  After being subdued, he told the Police that he had dangerous drugs with him; and

(v)  He bought E2, which were 2 plastic bags containing ICE, from a seller in Mong Kok with HK$1,000.

9.  The Defendant admitted, inter alia, under caution in the 2^nd video-recorded interview conducted on 23 May 2021 that:

(i)  He lived in the Flat alone, he had never lost his keys and no one else had keys to the Flat;

(ii)  E3 contained ICE, which he bought in Mong Kok with cash (HK$800 for one bag and HK$1,000 for two bags);

(iii)  E4 belonged to him and contained ICE, he was the one who put the ICE into E4;

(iv)  E5 belonged to him;

(v)  The Scale belonged to him, he bought it to weigh the drugs upon purchase;

(vi)  E6 belonged to him. It was used as a paraphernalia for inhaling dangerous drugs, he would put water and ICE in it, burnt it with a lighter and inhaled the ICE. He bought it at a street stall at Temple Street 2 to 3 months ago;

(vii)  E7 belonged to him and should have been used by him before. He had placed it in the kitchen for more than one year. He would put water and ICE in it, burn the bottom with a lighter and inhaled the ICE;

(viii)  E9 belonged to him and it had been placed in the Flat for a long time; and

(ix)  He did not pay heed to all items placed on top of the refrigerator, but they should be belonging to him.

The device capable of producing voltage (“E1”)

10.  El was capable of generating a peak-to-peak pulsating output voltage of 12,592V, a mean output voltage of 412V, and 65 high voltage pulses continuously in 3 seconds. Its peak-to-peak pulsating output voltage of >12kV is over 20 times a voltage that can rupture human skin and over 125 times a voltage that can cause electric shock on a human subject. If El is applied to sensitive area, such as the forehead, chest, carotid and spine, it could cause pain on subject but may or may not result in stunning and disabling effects on the subject.

11.  The estimated street value of E2 was HK$2,675.95. The estimated street value of E3-5 and E8-9 was HK$2,485.20.

12.  At the material times, the defendant: -  

(a)  had with him an offensive weapon, namely E1, without lawful authority or reasonable excuse (Charge 1);

(b)  possessed E2 for the purpose of trafficking (Charge 2);

(c)  possessed E3-5 and E8-9 for the purpose of trafficking (Charge 3); and

(d)  possessed apparatuses, namely E6-7, fit and intended for the inhalation of a dangerous drug, namely methamphetamine (Charge 4).

CRIMINAL RECORD AND BACKGROUND OF THE DEFENDANT

13.  The defendant had been sentenced by court on 7 occasions involving a total of 10 criminal convictions from 2002 to 2020.  One of them is similar to charge 1.  The defendant also has one previous record related to dangerous drug.

14.  The defendant is now aged 36 and single. His parents emigrated abroad and he was living alone in the Flat i.e. the subject premises under charge 3. He was a delivery worker and sometimes a part-time renovation worker earning HK$10,000 per month prior to the offence. Reference letters written by defendant’s employers were submitted.

MITIGATION

15.  In respect of charge 1, it was submitted by Ms Sujanani that the device (E1)  was given to the defendant by his friend.  The defendant had never used the device.  It was further submitted that according to the expert report, E1 was not considered as a portable device which is designed or adapted to stun or disable a person by means of an electric shock.

16.  The prosecution referred the court to the case of 香港特別行政區 訴 朱家皓 DCCC 325/2010, the subject device involved could generate 105 high voltage pulses continuously in 3 seconds and a starting point of 12 months’ imprisonment was imposed.  Ms Sujanani submitted that the device in the present case was less serious as E1 was only capable of generating 65 high voltage pulses continuously in 3 seconds.  It was suggested that a starting point of 6 months should be adopted. 

17.  In respect of charges 2 and 3, Ms Sujanani in her supplementary mitigation submission pleaded that as defendant is a drug addict of ICE, part of the drugs seized were for self-consumption.  On this issue, the court was informed that the defendant chose not to give evidence.

18.  In support of this mitigation, Ms Sujanani relied on defendant’s explanation given under caution in the two Video Recorded Interviews (VRIs). Ms Sujanani provided the court with abstract of VRIs transcript which had not been stated in the summary of facts (see Annex I of Defence supplementary mitigation submission). Under caution, in relation to charge 2, defendant said the consumption rate was according to his mood.  He bought the drugs for self-consumption at a cost of $1,000 from someone whose identity he did not wish to disclose. In relation to charge 3, the defendant said that some of the drugs found in his residence, namely E3-4, were all left overs of the ICE he had consumed in the past. The total left over amount contained in E3-4 was 0.87 grammes of ICE.  In the defence submission, the defendant claimed the left over amount would give defendant another 3 to 4 doses of ICE on the basis of 0.24 grammes dosage. The left over amount seized in defendant’s residence, i.e. 0.87 grammes out of 4.15 grammes, is about 20% of total seizure under charge 3.  The defence submitted it is a significant amount[1].

19.  By the same token, Ms Sujanani submitted that given defendant is a regular drug addict, it would not be unreasonable that at least 20% of the drugs seized from defendant under charge 2 i.e. 0.9 grammes of ICE would be for self-consumption[2].

20.  Ms Sujanani thus asked for a 20% discount on the sentence on the basis of 20% of the seized drugs were for self-consumption for charges 2-3[3].

21.  The defendant was sentenced to Drug Addiction Treatment Centre (DATC)  in his previous conviction of possession of dangerous drug in 2008.  The defendant has also been medically tested and his urine was amphetamine positive.  As such, they further strengthen the defence mitigation that the defendant is a drug dependent.

22.  The approach in sentencing charges 2-3, Ms Sujanani submitted, would be to sentence on the aggregate amount of 8.81 grammes of ICE seized[4]. She relied on HKSAR v Wan Lau Mei CACC 389/2013. The court was also invited to consider HKSAR v Ng Man Wai DCCC 1376/2011 and HKSAR v Chiu Siu Chui DCCC 1098/2016 to take 66 months as starting point for the two charges.

23.  In respect of charge 4, by referring to HKSAR v Poon Chi Wai HCMA 491/2004, Ms Sujanani invited the court to adopt a standard starting point which is 3 months’ imprisonment.

24.  Finally, Ms Sujanani asked the sentence for all the charges to run concurrently.

SENTENCE

25.  I have carefully considered the nature of the offences that the defendant were facing, the facts of the case admitted, the background of the defendant and the mitigation submitted by the defence.

Charge 1

26.  The subject matter of charge 1 is a device capable of producing voltage (E1).  Photographs, exhibit evaluation report and expert report of the device were submitted for the court’s consideration. 

27.  I have considered the size and the potential harm the device could cause.  It was found from defendant in Shanghai Street, a public place in the small hours[5]. According to the expert report, given the specification of the device, it can cause pain if the device is applied to sensitive areas, such as chest, carotid and spine though it may or may not result in stunning and disabling effects.

28.  It was conceded by the prosecution that, as the device of the present case is less serious than the one considered in 香港特別行政區 訴 朱家皓 DCCC 325/2010, the starting point should be lower than 12 months of imprisonment.

29.  I am also aware that the defendant has one similar previous conviction charged under the Summary Offences Ordinance Cap. 228 and I note that it happened some time ago i.e. in 2002.

30.  For charge 1, having considered all the circumstances, I adopt a starting point of 9 months’ imprisonment, after a discount of one-third for the early plea, the sentence is 6 months’ imprisonment.

Charges 2 and 3

31.  The defendant was found with 4.66 grammes of ICE when he was stopped at Shanghai Street in Mongkok (Charge 2).  Subsequently, defendant was brought back to his Flat for house search and 4.15 grammes of ICE was found (Charge 3).  The drugs found in both charges are of the same type and the total amount is 8.81 grammes.

32.  In HKSAR v Chow Yu Chi CACC 359/2000 para 5,

“In circumstances such as these, where both offences were committed on the same day on closely linked facts, it would have been proper for the judge to have calculated the overall starting point by combining the weights of heroin in each charge to arrive at a total weight.”

33.  I have also considered the submission advanced by the defence and the relevant authorities.  I accept that the approach for sentencing charges 2 to 3 is to add up the dangerous drugs of both charges (4.66g + 4.15g i.e. 8.81 grammes of ICE in total), so that the final sentence is not artificially inflated by separating out the drugs of the two charges.

34.  Ms Sujanani submitted two district court cases of HKSAR v Ng Man Wai DCCC 1376/2011 and HKSAR v Chiu Siu Chui DCCC 1098/2016 to ask the court to take a starting point in the range of 5.5 years to 6 years for 8.81 grammes of ICE.  Ms Sujanani further suggested and urged the court to use a starting point of the lowest range i.e. 66 months. 

35.  The tariff guideline for trafficking in Ice is set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For up to 10 grammes of ICE, the sentence ranges from 3 to 7 years’ imprisonment. On an arithmetic calculation, the starting point according to the tariff for 8.81g of narcotic content is 77 months’ imprisonment. A departure from a strict arithmetical starting point is not, by itself, objectionable, but where it is significant it should be explained (see HKSAR v Smit Hector Edward [2017] 1 HKLRD 287, para 26).  With respect, the cases submitted by Ms Sujanani were considered before Smit Hector Edward was laid down in 2017. Without any special reason to depart from the arithmetical starting point, I adopt a starting point of 77 months of imprisonment.

Self-consumption

36.  The defence claimed that 20% of the drugs found was for self-consumption and asked for 20% of discount on sentence for both charges.   In relation to the defence submission on self-consumption, the prosecution submitted that the court can exercise the discretion to make an adjustment on sentence. 

37.  For the issue of self-consumption, I reminded myself the factors[6] to be considered in HKSAR v Wong Suet Hau, Ice & Another[2002] 1 HKLRD 69 (para 34). Yet, 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 (see HKSAR v Tam Ling Yuen[2016] 2 HKLRD 572).

38.  In HKSAR v Cheung Wai Man [2019] 1 HKLRD 817, to substantiate the mitigation of self-consumption, 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). 

39.  In HKSAR v Chow Chun Sang[2012] 2 HKLRD 1121 (para 20), it is held that possession of dangerous drugs is in itself a serious offence and there is also the issue of latent risk to consider.

40.  In the present case, regarding charge 2, defendant admitted that the ICE found from defendant was purchased by him for self-consumption in his 1^st VRI.  Regarding charge 3, the drugs were found along with the apparatuses fit and intended for the inhalation of a dangerous drug in defendant’s own place of residence. Under caution, defendant admitted he lived in the Flat alone and no one else had keys to the Flat. A urine test conducted on defendant few days after the commission of the present case showed a positive result in relation to Amphetamine. 

41.  Having considered all the materials available before me, the mitigation advanced by Ms Sujanani on the defendant’s behalf and taking into account of the latent risk factor, I am prepared to afford defendant with a sentencing discount of 15%.  As such, I reduce the starting point to 65 months’ imprisonment for charges 2-3.

42.  After one-third discount upon defendant’s guilty plea, the sentence for charges 2-3 is 43 months' imprisonment.

Charge 4

43.  For charge 4, I have considered HKSAR v Mohamed P Shafik CACC 224/2014 in para 21-22,

“21. for Charge 1(possession of apparatuses fit and intended for the inhalation of a dangerous drug), the usual starting point should be 4½ months, citing R v Law Sing, HCMA 890/1996, unreported, 20 August 1996, a decision of Stock J (as he then was). However, according to more recent decisions of the Court of Appeal, a starting point of 6 months is not inappropriate: see HKSAR v Lee Yuen-ping, Maggie, CACC 242/2000, unreported, 24 November 2000, per Stock JA (as he then was)  at p 8; and HKSAR v Eriksson Rickard Wilhelm, CACC 454/2002, unreported, 23 April 2003, per Yeung JA (as he then was)  at §13. That being the state of more recent appellate authorities, we think the Judge was entitled to adopt 6 months as the starting point for Charge 1. And there is no basis for us to interfere.

22. In any event, even if one were to apply Law Sing, we would agree with the submission of Ms Mok, Senior Public Prosecutor (Ag.)  for the respondent, that as the applicant was found in possession of the apparatus in a video game centre, the risk that the apparatus would readily be shown to youngsters at the video game centre could not be neglected and the Judge was therefore entitled to adopt a higher starting point than that stated in Law Sing.”

44.  In the present case, the apparatus was found inside the residence of the defendant.  I adopt a starting point of 4½ months of imprisonment, after one-third discount upon defendant’s guilty plea, the sentence is 3 months’ imprisonment.

TOTALITY

45.  I order the sentence of charges 2 to 4, which are all dangerous drugs related, to be served concurrently.

46.  The offence of possession of offensive weapons (Charge 1)  and offences related to dangerous drugs (Charges 2-4)  are, however, separate and distinct in nature.  Nevertheless, bearing in mind the principle of totality, I order that 3 months of the sentence in charge 1 to be served consecutively to the sentence in charges 2 to 4 and the balance be served concurrently.

47.  There is no other mitigating factor which justifies a further reduction of sentence.

CONCLUSION

48.  The sentence is 46 months’ imprisonment.