HKSAR v. YAU HUNG LAI

DCCC 1022/2018

[2018] HKDC 1610

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1022 OF 2018

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of trafficking in 9.35 grammes of a solid containing 5.92 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1] (charge 1); one charge of possession of 0.62 gramme of a crystalline solid containing 0.56 gramme of methamphetamine hydrochloride (“ice”), contrary to section 8 of the Dangerous Drugs Ordinance (charge 2), and one charge of possession of apparatus fit and intended for the inhalation of ice, contrary to section 36 of the Dangerous Drugs Ordinance (charge 3).

2.  In summary at 1658 hours on 10 August this year the police intercepted the defendant when he entered Room C on the 6th Floor of Hang On Mansion, No. 17 Hang On Street in Ngau Tau Kok. 

3.  Inside the living room the police found, inter alia, one plastic box containing the cocaine; one transparent re-sealable plastic bag containing the ice; one device for inhaling ice which contained traces of ice; a pair of scissors; a hammer; two lighters, an electronic scale and eighteen unused re-sealable plastic bags. The police also found two mobile phones and $7,780 cash.

4.  Under caution the defendant admitted the cocaine was for sale and the ice was for his own consumption.  In a subsequent video recorded interview, the defendant explained how he sold the cocaine and said that he used the mobile phone to contact his drug buyers and that part of the money seized was from the sale of drugs and part was his salary.  

Mitigation

5.  In passing sentence, I have carefully considered the written submission of Mr Kan and everything said on behalf of the defendant by Mr Kan today, including that the defendant has been addicted to ice since 2008 and that he sold drugs to support his addiction.  The defendant says that since his remand he has rid himself of his addiction and promises to stay away from dangerous drugs.    

Trafficking in cocaine

6.  The courts have equated for sentencing purposes cocaine with heroin[2].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin.  Where the quantity of narcotic is up to 10 grammes sentence after trial is between 2 and 5 years’ imprisonment[3]. 

7.  Mr Kan asks that the court adopt a starting point of 3 years and 9 months’ imprisonment[4]. On a purely arithmetical approach the proper starting point after trial for 5.92 grammes of cocaine, based on quantity alone, would be just over 3 years and 9 months’ imprisonment. 

8.  This does not however take into account that the defendant has a previous conviction for trafficking in dangerous drugs in 2012 when he was sentenced to 5 years and 7 months’ imprisonment.  InR v Lau Tak Ming the Court of Appeal said that within the suggested bands a sentencing judge may properly take into account previous history of narcotic offences. 

9.  The defendant also has an outstanding offence of theft by finding which is still under investigation by the police.  Mr Lam informs the court that the theft is alleged to have been committed prior to the trafficking offence.  The defendant was placed on police bail.  This is accepted by the defence.  Commission of offences on bail is an aggravating feature of sentence. 

10.  I am satisfied in all the circumstances the proper starting point after trial is 4 years’ imprisonment. 

Possession of ice

11.  In HKSAR v Mok Cho Tik the Court of Appeal said the starting point for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months but this does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant[5].

12.  Taking into account the quantity of ice is 0.56 gramme, I agree with Mr Kan that a starting point of 9 months’ imprisonment is appropriate. 

Possession of apparatus fit and intended for inhalation of ice

13.  For possession of apparatus fit and intended for inhalation of ice I also agree with Mr Kan that a starting point of 3 months’ imprisonment is appropriate. 

14.  Giving the defendant full credit for his pleas of guilty reduces the sentences to 2 years and 8 months; 6 months and 2 months respectively.

Totality

15.  Concurrent sentences are appropriate for possession of ice and possession of apparatus for inhaling ice. 

16.  Mr Kan submits that if the small quantity of ice possessed by the defendant had been part of the trafficking charge this would make little difference to the sentence on the trafficking charge and therefore asks for concurrent sentences[6].

17.  In support Mr Kan refers the court to HKSAR v Chiu Hoi Yan where the Court of Appeal held that concurrent sentences were appropriate for trafficking in 19.43 grammes of heroin and possession of 0.22 gramme of ice and 0.38 gramme of ketamine, explaining that albeit different drugs the overall starting point would have been the same[7].

18.  Although there would be a difference if the defendant had also been charged with trafficking in the ice, that difference would be slight.  In the circumstances I agree that concurrent sentences are appropriate. 

19.  The defendant is convicted and sentenced as follows: 

Charge 1 - 2 years and 8 months’ imprisonment;

Charge 2 - 6 months’ imprisonment; and

Charge 3 - 2 months’ imprisonment.

All sentences are to be served concurrently. The total sentence to be served by the defendant is 2 years and 8 months’ imprisonment.