HKSAR v. LEE TAK HON

DCCC977/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 977 OF 2009

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Reasons for Sentence

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1.  The defendant, Lee Tak-hon, pleaded guilty before me to three counts of trafficking in dangerous drugs and one count of possession of dangerous drugs. The drugs involved in the 1st charge is 0.42 gramme of cocaine; 2nd charge: 0.96 gramme of cocaine; the 3rd charge: 1.85 grammes of cocaine. The drugs involved in the possession charge is 0.47 gramme of ketamine and a total of 0.63 gramme of cocaine.

2.  This was a police undercover operation in which a woman police officer disguised as a drug addict telephoned the defendant to buy drugs. She was able to buy cocaine from the defendant on three separate occasions in July 2009: the first one on the 16th day, the second one on the 18th and the third on the 23rd. On the last occasion, after the conclusion of the drug transaction, the police took action, arrested the defendant and took him back to his place and found the drugs- the subject matter of Charge 4.

3.  The defendant has amassed 19 previous convictions over the last 18 years. Three of them are drug-related. They are the most recent ones: one in 2007, one in 2005 and the other one in 2002.

4.  In mitigation, the court was told that the defendant had two marriages and two divorces. In the first marriage, they have a son now aged 14. The second one, in fact the defendant was cohabiting with the woman, and they had two children aged 8 and 10 from that relationship. Now defendant is living with another lady. The defendant used to work in a construction site and had made contribution to his ex-wife and ex-cohabitee, and he has limited financial means.

5.  Counsel asked the court to look at the case as one single offence on the grounds that all the drugs were sold to the same person-the undercover agent. Counsel submitted that all the crimes were committed at the instigation of the officer, and all the drugs added up in the case is not that much. And counsel also stressed that the defendant was not actively taking part in the crime. He took a passive role. It was the police who made the call. Defendant came out and sold the small quantity of drugs to the officer. Counsel also said this is not a case where the defendant induced youngsters to take drugs or sold the drugs aimed at disco, places like that.

6.  In relation to Charge 4, the amount of drugs was not significant. The defendant had co-operated with the police after his arrest. He simply came forward and admitted his guilt, not trying to do any plea bargaining.

7.  Drug trafficking is a heinous crime, and I do not think it requires any elaboration on the harm that drug could bring to our society. Anyone who gets hooked on drugs would almost certainly walk down the path leading to self-destruction, and not many instances of turning back. In the course of it, they would resort to all sorts of crimes to finance their drug habit. Not only did they make their lives miserable, they also made other people’s lives miserable. The immediate victims were the family members, relatives and friends.

8.  As a trafficker, you are the person who directly brings this harm to the society. The court have always been tough on drugs crime, in particular, drug trafficking. In the present case, you are trafficking in cocaine. The sentencing guideline for trafficking in heroin applies to this case: up to 10 grammes of narcotics, 2 to 5 years for consideration.

9.  Your counsel asked the court to view the present case as a single offence. That I do not agree. They were separate and distinct offences, albeit the commission of them close in time, within a week, and involved the same person.

10.  Having heard your mitigation, apart from your guilty plea, I see no other mitigation of real substance. For the trafficking charges, I take 2 years as starting point, reduced to 16 months to reflect your plea. For each charge of 1, 2 and 3, you are sentenced to 16 months’ imprisonment.

11.  Now I come to the sentence of possession of drugs. The Court of Appeal in the case of Mok Cho Tik DCCC1155 of 1999, CACC 165 of 2000, set out the proper approach in sentencing possession: first of all, determine the starting point for the possession of the drugs in question, and then consider the existence of latent risk. What latent risk means is when a person possessed drugs, the risk of these drugs passing to others. If there exists such risk in a case, the starting point will be higher, and then consider any mitigation to reduce the sentence accordingly. What the Court of Appeal says in Mok Cho Tik in paragraph 17 of the judgment, it says, among other things:

“We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months.”

And then went on to describe the factor to be taken into account in assessing the risk: whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has conviction for trafficking; and of course the quantity of drugs.  The full circumstances of the risk must be assessed.

12.  Usually, when the court in sentencing offender for possession of drugs will consider a DATC report before passing any terms of imprisonment unless the defendant is also sentenced to a term over 9 months for any other offence on the same occasion, this is the situation in the present case, so I do not need to call for a DATC report before sentencing you on Charge 4.

13.  Taking into account all the mitigation, I take 12 months as a starting point for the possession of the drugs in question. Taking into account the fact that just before this incident, you had sold three times cocaine to the officer, I am of the view that the latent risk exists in this case is very high. For that, I add 6 months on top, bringing the starting point to 18 months, and then reduce it to 12 months for your plea. For Charge 4, you are sentenced to a term of 12 months.

14.  These charges are separate and distinct. In principle, the terms should be run consecutively to each other, but for the totality principle, I order that the term of Charge 1 be consecutive to 6 months of Charge 2 and 6 months of Charge 3 and 4 months of Charge 4, and the rest to run concurrently. The total term is one of 32 months’ imprisonment.