HKSAR v. LI KA WAI, GARY

HCCC 151/2018

[2018] HKCFI 2304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 151 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

Mr Li Ka-wai is the subject of case number HCCC 151/2018 and was committed for sentence on 7 May 2018 on a charge of trafficking in a dangerous drug. He admitted the facts at the time he was committed. He was seen leaving a flat in Sham Shui Po. Inside the flat, Mr Li was searched and keys and two mobile phones, together with $440 were found on him. Mr Li admitted that the keys that were found were the keys to the flat from which he had emerged. He said the flat belonged to him.

The police executed a search warrant at the flat and the following items were found: One, three packets containing a total of 96.9 grammes of a crystalline solid containing 96.3 grammes of ‘Ice’; four packets containing a total of 24.1 grammes of a mixture containing 15.7 grammes of heroin hydrochloride; some electric scales; a pile of empty resealable plastic bags, and one electricity bill in the name of Mr Li. Mr Li was cautioned and in response to the caution he said, “I sell the dangerous drugs ‘Ice’ and ‘4 jai’ to the others for making money.”

In the course of an interview which was recorded later, Mr Li admitted ‘4 chai’ means heroin, he bought the drugs from a gentleman for $12,000 some 2 days ago and he had not consumed any of the drugs. He bought the drugs for his own consumption and he bought a larger amount of drugs at the time so that the price would be cheaper. The electronic scale was to avoid being cheated about the weight of drugs. The empty plastic bags were used to store drugs so he would consume a smaller amount each time. He resided in the flat alone, or was the only person keeping keys to the flat. He would spend between $200 and $300 on ‘Ice’ and between $400 and $500 on heroin daily. He worked as a transportation worker earning $16,000 a month.

It was agreed that the value of the ‘Ice’ and the heroin, if sold on a retail basis, was $52,800.

By his plea of guilty before the magistrate, Mr Li admitted that he possessed the drugs in question for unlawful trafficking.

He’s a 39-year-old man. He was educated to secondary level. He was educated in Hong Kong. At the time of his arrest, he was a full-time transportation worker. His mother is still alive. He has a long criminal record which commenced in 1998. It was not until 2003 that he was convicted of possession of dangerous drugs. In 2005, he was convicted of trafficking in dangerous drugs and sentenced to imprisonment. His last offence was possession of dangerous drugs in 2015. Significantly, he was sentenced to Drug Addiction Treatment Centre.

I am informed by counsel for Mr Li, and I accept, he is long term drug addict and is addicted to both ‘Ice’ and heroin. The community of Hong Kong, and as a result, the courts of Hong Kong, have for many, many years taken a severe view of drug trafficking, particularly in relation to heroin and ‘Ice’. Both drugs have terrible consequences for the individual. If anyone can attest to that, it is the defendant, Mr Li, himself. ‘Ice’ is savagely addictive. Ridding oneself of that addiction is to say, at the least, an arduous process, and sadly, history demonstrates that attempts to rid oneself of an addiction to ‘Ice’ is fraught with instances of disappointment.

However, there are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who have become addicted to ‘Ice’. Further, the conduct of persons affected by ‘Ice’, both in private and perhaps more pertinently, in public, can be quite dangerous. The view of the community and the courts is reflected in the nature of sentences and the level of those sentences traditionally imposed for trafficking in heroin and ‘Ice’.

Heroin is also a drug of addiction. It has a quality which makes it terribly difficult to rid oneself of that addiction. It costs an individual dearly and it costs the community in terms of rehabilitation and treatment.

The courts have provided sentencing guidelines for various forms of dangerous drugs including the drugs the subject of the charge in this case. In relation to ‘Ice’, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The guidelines suggested for quantities involved in the present case is in relation to quantities of ‘Ice’ which fall between the range of 700 grammes and 300 grammes attract a sentence of between 11 and 15 years’ imprisonment.

In relation to heroin, guidelines were articulated in The Queen v Lau Tak Ming & Another [1990] 2 HKLR 370. The guidelines suggested for the quantities involved in the present case is between 10 grammes and 50 grammes of heroin, a sentence of between 5 and 8 years. Further, and pertinent to the position of Mr Li, the courts have articulated various approaches to the problem of sentencing where, as here, there is more than one kind of drug in issue. Where there is a requirement to sentence for two different drugs in the same indictment or charge sheet, the courts have identified different approaches, depending on the circumstances.

These different approaches were articulated in HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Ko Ka Hing [2009] 4 HKLRD 826 and HKSAR v Chan Yuk Leong CACC318/2013. The approaches identified in the authorities recognise that an approach where a sentence for each component of the collection of drugs in which the accused is trafficking might, if they were simply added together, produce a result which is likely to be unjust. This is, in the final result, a reflection of the basic principle that sentence is an art and not a mathematical exercise, and that the art of sentencing is devoted to producing a just result, given the circumstances of the defendant and the circumstances of the case.

The essence of the appropriate approach is if the drugs are of an approximately similar nature, then the combined approach would be appropriate, see HKSAR v Ko Ka Hing [2009] 4 HKLRD 826, para 3 for that. The Court of Appeal in that case, Cheung JA and Tong J said there might necessarily have to be adjustments, even if the combined approach is used, to avoid absurdity. In HKSAR v Wong Kin Kau, the Court of Appeal in dealing with three kinds of drug, ‘Ice’, ketamine and herbal cannabis, indicated that whatever approach is adopted, the paramount consideration was the totality of the overall starting point. In that regard, Tang VP indicated that the combined approach was more likely to lead to that result ([2010] 4 HKC 443, para 5-6).

Portion for self-consumption:

The authorities recognise that on a trafficking in dangerous drugs charge, that possession of some of the drugs subject to the charge for self-consumption is a mitigating factor. That may be seen in R v Chan Mung Lung [1992] 2 HKCLR 127, HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and more recently in HKSAR v Chow Chun Sang [2012] 2 HKLD 1121. However, as the Court of Appeal in HKSAR v Wong Suet Hau and HKSAR v Chow Chun Sang made plain, possession of dangerous drugs is in itself a serious offence and there is also the issue of latent risk to consider.

Indeed, it is pertinent to recall the observations of the Court of Appeal in HKSAR v Wong Suet Hau as follows ([2002] 1 HKLRD 69), and I quote:

“Where it is accepted that a significant proportion of the drugs were for the defendant's own consumption, it is unnecessary, save in the most exceptional case where the division is readily quantifiable, for the sentencing judge to specify the relative amounts or proportions, except perhaps in the very broadest of terms. In such circumstances the court should so adjust sentence as to reflect the fact that not all the drugs were for trafficking. However in doing so, the judge should keep well in mind:

(1) The fact that possession of dangerous drugs itself carries a term of imprisonment;

(2) the requirement to enhance sentence for simple possession of drugs to reflect, where appropriate, the ‘latent risk’ factor which takes into account the risk that some of the drugs intended for self-consumption may nevertheless find their way into the hands of others.”

In the instant case, the proportion is not readily quantifiable and the approach adopted in this case is to the manner of calculation and expression of the outcome of the finding of an unspecified quantity of drugs being seized for personal consumption is appropriate.

Latent risk

Since at least 1994, the courts of Hong Kong have recognised that in the context of the possession of dangerous drugs there is a risk of those drugs being disseminated. The phrase used, perhaps inaptly, to describe this, is “latent risk”. The matter was discussed in R v Chiu Hung Wong & Another 1 HKCLR 184 by Silke V-P at para 22-25, more recently the latent risk factor was recognised in HKSAR v Minney [2011] 3 HKLRD 556, 4 HKC 136. This enhancement is not merely for having a significant quantity of drugs, it is not to be employed as a form of disguise sentencing for trafficking in the drug the subject of the charge.

In HKSAR v Minney, Fok JA (as he then was) observed ([2011] 3 HKLRD 556, 4 HKC 136, para 28):

“In our opinion, there can be no objection to a sentencing court taking into account the relevant circumstances of the case in determining whether the possession of the drugs leading to the conviction are such as to give rise to a real risk that some of those drugs might end up being redistributed and finding their way into the hands of others apart from the offender’s. That is not to say that the court then attributes to the defendant an intention to traffic in the drugs but simply reflects the fact that the quantity and circumstances of their possession are such as to pose a risk to society.”

Fok JA later added ([2011] 3 HKLRD 556, 4 HKC 136, para 29):

“It is the real risk of dissemination of drugs which the courts are looking to deter by this sentencing policy and we see nothing objectionable or contrary to policy or to the presumption of innocence in a sentencing policy that seeks to protect the public against a real risk to which the circumstances of an offence gives rise. It is not a question of punishing a person for a crime he has not committed. It is not a question of punishing him for a crime he may commit. It is a question of punishing him for the crime which he has committed taking into account the circumstances of its commission and the dangers to society which those circumstances create.”

The Court of Appeal in HKSAR v Minney added two cautionary observations:

“(1) where the court is considering the enhancement of sentence on the basis of latent risk, those representing the accused must be notified, and

(2) the accused is not to be sentenced for unproved trafficking or an unproved actual intention to traffic.”

It is self-evident that there cannot be a tariff for latent risk. The authorities recognise the highly fact-specific nature of the assessment which has to be done. It is recognised in the authorities that a three-stage process is necessary. The first stage involves identifying the starting point appropriate to the offence; the second stage of that process is the assessment of the latent risk. Following that, the third stage involves an adjustment of any relevant discount.

Mr Li is to be sentenced upon the basis of 93.6 grammes of ‘Ice’ and 15.7 grammes of heroin. There is clear support for his contention that he is an ‘Ice’ addict and a heroin addict. His record supports that conclusion in the sense of multiple convictions for drugs and the fact that he has been to Drug Addiction Treatment Centre a number of times. The overwhelming inference that I draw is that from these treatments, no matter how vigorous, have not been sufficient to prevent a relapse into addiction.

Further, a test conducted at the Lai Chi Kok Reception Centre on 11 June 2017, that is, three days after he was intercepted by the police, he still tested positive for both amphetamines and opiates. Counsel for Mr Li asserts that Mr Li is not in a position to say what proportion of the drugs were for self-consumption. Counsel for the prosecution, Ms Lily Yip, accepts that the proper inference is that Mr Li is an addict. She realistically accepts that some of Mr Li’s stock of drugs would be for self-consumption and it’s not unreasonable to accept that there will be occasions when it is not possible to say with precision what proportion of that stock is for trafficking and what proportion is for self-consumption.

He does, however, point out that no paraphernalia commonly associated with the consumption of these drugs was found in the residence of Mr Li. Against that, it would be somewhat unrealistic in the circumstances of this case to think that Mr Li would keep his stock for his own consumption in a place other than his residence. It may be that Mr Li is not able to give a specific percentage, but he is the consumer of the drug and should be readily capable of at least some approximation. But, nevertheless, I am content to accept as true that a proportion of the drugs - he did test positive for both amphetamines and opiates - was for his own consumption.

In my judgment, given the somewhat fluid description of quantity in the hands of Mr Li for self-consumption, the latent risk issue is not to be ignored. In short, Mr Li might sell less and consume more, but there is also the possibility that he might sell more and consume less. Accordingly, the latent risk is clearly established in this case.

The remaining issue so far as Mr Li is concerned is the starting point. It seems to me on the authorities that the appropriate approach to sentencing is to first recognise that while both drugs are a serious problem for the community, the reality is that ‘Ice’ is a more potent drug and the sentencing guidelines make that abundantly plain. It seems to me, consistent with what the Court of Appeal said in HKSAR v Wong Kin Kau (above), that the combined approach is the appropriate approach.

On that premise, I take ‘Ice’ as the base of the sentence. Having fixed the starting point for the quantity of ‘Ice’, there then should be a proportionate upward adjustment for the heroin, a component of the charge. It is also relevant in this analysis that the heroin is the lesser in quantity of the two drugs. In this case, for the trafficking of 93.6 grammes of ‘Ice’, the sentencing range is in the bracket of 11 to 15 years’ imprisonment.

If all that was involved was ‘Ice’, an appropriate starting point would be 11 years and 6 months. That is on the premise that within the sentencing range, the sentence should not be determined on a linear basis, but on a gradual arrival at the top of the range. 15.7 grammes of heroin would, if added to the 93.6 grammes of ‘Ice’, equal 109.3 grammes. If all of that was ‘Ice’, an appropriate starting point would be something of the order of 11 years and 10 months.

However, given that some of the total is marginally less potent heroin, that has to be scaled back and given the disparity between the two drugs is not all that great, either in terms of sentence or potency, an appropriate starting point would be 11 years and 7 months. Making the adjustment for self-consumption, I have worked on the assumption that the proportion taken for self-consumption from each stock of the drugs is approximately equal. That may not be a perfect assumption, but putting the matter negatively, it is the least imperfect that I can arrive at, consistent with doing justice to Mr Li.

Balancing a downward adjustment for self-consumption and some allowance for latent risk, I think the appropriate starting point for Mr Li’s case is then 10 years and 7 months. Consistent with the observations in HKSAR v Wong Kin Kau (above) the deduction of the 12 months from what I consider to be an appropriate starting point is not something I can appropriately quantify. It is simply an attempt to do justice to the accused, recognising the mitigating factors, taken together with the possession of the dangerous drug, particularly ‘Ice’ and heroin, is of itself a serious matter attracting a term of imprisonment and the issue of latent risk.

Mr Li has pleaded guilty at the earliest opportunity and it is therefore appropriate to accord to him a discount from the starting point appropriate. The appropriate discount in this case is a discount of one-third. I have taken into account, in arriving at the sentence, the mitigation advanced by counsel for Mr Li.

The order of this court is that you are sentenced to a term of imprisonment of 7 years.