CRIMINAL CASE NO. 20 OF 2012
COURT: The defendant, Tsang Kwok-man, was charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded guilty before me and after admitting to the Summary of Facts, I found him guilty as charged.
The admitted facts disclose that on the day in question, the defendant was stopped by police officers when he left Flat C, 5th Floor, 160 Yu Chau Street. The police gained entry to the said premises by using one of the keys found on the defendant. Upon search, the police found dangerous drugs suspected to be “Ice,” heroin and triazolam locked inside a drawer of the television cabinet. A number of plastic bags and a set of scales were also found together with the drugs.
The defendant was arrested for the offence of trafficking in dangerous drugs. Under caution, the defendant claimed all the drugs were for his own consumption. The defendant later attended a video-recorded interview. He claimed, among other things, that he was a drug addict; all the drugs seized were for his own consumption; he consumed daily by inhalation; he had bought the drugs a few days ago for some $20,000; the drugs would last him at least a month or so; and he earned up to $15,000 a month.
The drugs involved were later confirmed to be, one, 28 packets of varying weight containing a total of 29.64 grammes of a crystalline solid containing 29.07 grammes of methamphetamine hydrochloride; that is “Ice”; 12 packets of varying weights containing a total of 5.56 grammes of powder containing 3.58 grammes of heroin hydrochloride; and five foil packets containing a total of 49 tablets containing 0.7 gramme of midazolam. The street value is estimated to be $29,050.
I have since looked at the photographs and saw how the drugs and scales were found inside the drawer.
The defendant is a 33-year-old married man, not a first offender, having appeared in court on 11 occasions. His first two convictions were for possession of drugs and he was put on probation. After committing an offence of theft, one of wounding and one relating to unlawful gambling, the defendant was once again convicted of possession of dangerous drug in 2005. On this occasion, he was sent to a DATC.
After a number of theft convictions, the defendant was once again convicted of smoking or injecting dangerous drugs in 2007. This time he was sentenced to a gaol term of 4 months. That was the last time the defendant was convicted of drug-related offence. The defendant was further convicted of theft and burglary in 2008 and 2010 respectively.
Miss Chow, counsel for the defendant, informed me that the defendant’s parents were divorced when he was about 5 years old and his mother was busy making ends meet, thus leaving him and his older two siblings to their own devices. The defendant mixed with undesirable characters and was first convicted of possession of drugs when he was 14. His drug addiction eventually landed him in a drug addiction treatment centre where he came to know more people involved in the drug trade.
After the defendant was released from gaol on the last occasion, he incurred debt and he agreed to traffic dangerous drugs for others to make money to repay the debt. Hence, he kept the dangerous drugs in his drawer and he would make delivery as and when he received instructions.
The defendant claimed that one-third of the “Ice” and heroin seized were intended for his own consumption whereas the midazolam were all for his own consumption. The defendant abused “Ice” and heroin to create a rush before he went to work and he used the midazolam to calm him down to sleep, according to Miss Chow’s instructions. Although the defendant had told the police that he would take up to 1 and a half gramme of “Ice” a day, Miss Chow told me that the defendant was only giving an estimate to the police. There were times when he would take less, particularly when he was working.
The police did not find any apparatus used to smoke or inhale dangerous drugs during the search. The defendant explained that he kept the tin foils for chasing the dragon in the kitchen, and there were bottles used to hold distilled water available at the premises for him to make up the “Ice” bottle as and when required.
The defendant claimed that his addiction was so serious that after he was taken into custody, he was admitted to hospital for a period of one to two weeks to have methadone treatment. He recalled going in and out of hospitals.
I adjourned the sentence pending a record from the CSD and medical report to see if the defendant’s allegation could be substantiated. During the hearing on 10 October this year 2012, I perused a medical report from the medical officer of the Lai Chi Kok Reception Centre dated 5 October 2012. The officer informed me that the defendant had withdrawal symptoms on admission. While the defendant had been referred to the Accident and Emergency Department of the Queen Elizabeth Hospital on 1 September for dizziness, he was returned back to the Lai Chi Kok Reception Centre on the same day. No follow-up treatment was arranged by the staff of QEH.
Miss Chow also informed me that the defendant had problems of allergic rhinitis and had regular follow-up treatment in the Yau Ma Tei ENT Clinic. Miss Chow told me that according to the defendant, he suffered from rhinitis as a result of the drug abuse. I indicated to Miss Chow that I was not prepared to take what the defendant told her without proper expert opinion or evidence from a medical doctor.
The medical report did not substantiate the defendant’s claim that he had been hospitalised in the Queen Elizabeth Hospital or indeed in any hospital. As the defendant insisted he was taken to hospital on more than one occasion due to the withdrawal problem, I adjourned the matter further so that the defence can provide me with the relevant reports to support his assertion.
When the hearing resumed today, that is 12 December 2012, I was provided with a further medical report by the medical officer of the Lai Chi Kok Reception Centre on the defendant. I was informed that the defendant was indeed admitted into the centre hospital of the Lai Chi Kok Reception Centre immediately upon reception on 25 August 2011.
It is unclear from this report how long he was hospitalised. However, I was given the names of medication prescribed to the defendant from 25 August to 28 August 2011 and the change of medication from 29 August to 7 September 2011. There is no need to list all the medication here. Suffice it to say that they are medication for anxiety, pain, insomnia, nausea, diarrhoea and so on. I am prepared to accept that most of these symptoms were signs of withdrawal from drug abuse. Moreover, the test on the urine specimens collected from the defendant on 26 August 2011, the day after his admission into the Lai Chi Kok Reception Centre, showed positive to opiate and amphetamine.
I am also provided with a medical report from the Queen Elizabeth Hospital shortly before I started hearing the case today. Basically, this report supports what the medical officer of Lai Chi Kok Reception Centre has said without really adding anything more. It would appear that the only period of hospitalisation in any hospital was upon his admission into the centre hospital of the Lai Chi Kok Reception Centre and no other hospital.
Miss Chow urged me to take into consideration the effect of withdrawal on the defendant which might have affected his recollection of exactly when and for how long he had been hospitalised and not to take him as lying to the court.
Miss Chow referred me to the guideline cases in relation to the starting point for “Ice” and heroin. She also referred me to the case of HKSAR v. Yip Pik Kwai [1999] 3 HKLRD 42 about the trafficking of “Ice” and heroin, how to consider them together to arrive at a starting point. Miss Chow urged me to accept that one‑third of the seized drugs was for the defendant’s own consumption, and in respect of the “Ice,” the packet without any adhesive tape labelled No. 3 by the police on Photo 13 is alleged to be the packet that the defendant intended for his own use.
Miss Chow referred me to the well-known case of HKSAR v. Wong Suet Hau & Another [2002] 1 HKLRD 69 and submitted that the defendant should have a lower starting point on the basis that part of the drugs was for his own consumption. As to the percentage, Miss Chow referred me to the case of HKSAR v. Chow Chun Sang [2012] 2 HKLRD 1121 in which the Court of Appeal said that the discount should be between 10 to 25 per cent, depending on the individual circumstances of the case. Lastly, Miss Chow referred me to the case of HKSAR v. Wong Kam Wo [2001] 2 HKLRD 290 to make her submission that for the present case, the midazolam should be disregarded for the purpose of sentence.
Trafficking in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of $5 million and to imprisonment for life. There are three types of drugs involved here: “Ice,” heroin and midazolam. The Court of Appeal has set down guidelines for the trafficking of “Ice” in the case of AG v.Ching Kwok Hung [1991] 2 HKLR 125. Trafficking 10 to 70 grammes of “Ice,” starting point is one of 7 to 10 years. For the trafficking of heroin, the guideline for sentencing could be found in R.v. Lau Tak Ming[1990] 2 HKLR 370. For the trafficking of up to 10 grammes, starting point ranges from 2 to 5 years.
For the purpose of working out the appropriate starting point, I am prepared to ignore the quantity of midazolam as suggested by Miss Chow. I also find the approach in Yip Pik Kwai appropriate. The progressions in scale in respect of the guidelines for “Ice” and heroin are not the same. If all the dangerous drugs had been “Ice,” a starting point of 8 and a half years would have been appropriate. If all the drugs were heroin, a starting point of 7 years would have been appropriate.
Bearing in mind the defendant was not a first offender, having committed drug-related offences before but none for trafficking in dangerous drugs, I am of the view that a starting point of 8 years, without taking into account any part of the dangerous drug being for the defendant’s own consumption, is appropriate here. I bore in mind the factors mentioned by the Court of Appeal in the case of Wong Suet Hau that I need to take into consideration when deciding whether the defendant’s claim was true.
On the evidence before me, including how the drugs were found, concealed inside the drawer in his home, how the packets were labelled or not labelled, his claims through his counsel that the one that was not affixed with an adhesive tape No. 3 was the one intended for his own use, the defendant’s previous drug-related criminal record, his immediate response when cautioned, the information provided in the three medical reports before me, I am satisfied that part of the “Ice” and heroin seized were intended for the defendant’s own use.
Although the defendant claimed that one-third of the “Ice” and heroin seized were so intended, I am only prepared to accept that part of the “Ice” and heroin were for his own use without specifying any actual percentage. Although the defendant claimed that the packet labelled No. 3 without any adhesive tape was for his own use, I have to bear in mind the very real risk that he would have to be obliged to traffic some of the drugs in that packet as and required by his boss.
Doing the best I can without actually specifying the exact percentage of how much of the drugs were intended for his own use, I think it appropriate to give a discount of 12 months (1 year) from the starting point which translated to just over 12 per cent of 96 months. The defendant has pleaded guilty and I will give him the usual one-third discount from the starting point of 84 months. I do not see any other grounds for further reducing the sentence. So from a starting point of 84, after the one-third discount, it would become 56 months. That means 4 years 8 months.