HKSAR v. LAM CHEUK HEI

DCCC 600/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 600 OF 2016

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REASONS FOR SENTENCE

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1.  The defendant (male) (aged 35) appeared before me this morning and pleaded guilty to a single charge of trafficking in dangerous drugs on 16 March 2016, in Fuk Tsun Street, Tai Kok Tsui, namely, 17.88 grammes of heroin hydrochloride, 0.15 gramme of a solid containing cocaine, 1.87 grammes of methamphetamine hydrochloride commonly known as “Ice” and 0.40 gramme of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134).

The facts

2.  In the afternoon at around 3:30 pm on 16 March 2016, the defendant was stopped by the police when he was sitting at the driver’s seat of a private car during an anti-narcotic operation.  A search of the car by the police revealed a brown messenger bag at the front of the passenger seat which was found to contain:-

(a) two red-lined transparent resealable plastic bags respectively containing 29 and 40 pellets of suspected dangerous drug in red plastic sheet wrappings (“Exhibits 1 and 2”);

(b) two red-lined transparent resealable plastic bags respectively containing 31 and 49 pellets of suspected dangerous drug in blue plastic sheet wrappings (“Exhibits 3 and 4”);

(c) four transparent resealable plastic bags containing suspected dangerous drugs (“Exhibits 5 to 8”); and

(d) one silver metallic cylinder (attached to key chain and keys) containing suspected dangerous drugs (“Exhibit 9”).

3.  All the suspected dangerous drugs were later delivered by the police to the government chemist for analysis.  Exhibits 1 to 4 were confirmed to be heroin, 5 and 6 to be cocaine, 7 and 8 to be “Ice”, and 9 to be ketamine.  The quantity were as stated in particulars of the charge. Their street value is totalling HK$17,143.

4.  Under arrest and caution, the defendant accepted the drugs belonged to him and asked for a chance.  In a subsequent video-recorded interview, the defendant said he bought all the drugs for his own consumption and he mostly consumed heroin - about two to seven pellets per day.  Also, he told the police that he does not have a fixed place of abode or family or partner.  Instead, he rented different hotels every few days.  Prior to the arrest, he had just checked out of a hotel in Kowloon which was in Tai Kok Tsui. He had with him $1,226 cash which was from his salary.  He had with him also four mobile phones.

Criminal records and personal background

5.  In the past, the defendant has 17 previous convictions from 1995 to 2016, of which five were possession of dangerous drugs. Because of these convictions, he had been given probation and was also sentenced to the DATC.  His last conviction for possession of dangerous drugs was in June 2016 for which he was sentenced to 3 months’ imprisonment.

6.  According to the antecedent statement, the defendant is still single and despite what he had told the police under caution, he said he lived with his parents.  He had a Form 2 education level. He used to work as a construction site worker but at the time of arrest, he was unemployed.

7.  Mr Carl Yuen, counsel for the defendant, informed the court that the defendant lived together with his age-old parents who were in court today and they were both 69 years of age.

Mitigation

8.  Mr Yuen further submitted a letter from the defendant’s previous employer, stating that between August 2015 to March 2016, he was earning 33,000 per month.  The defendant is also a blood and organ donor.  In the course of the mitigation, Mr Yuen submitted that part of the dangerous drugs in the present case were for defendant’s own consumption.  When I asked Mr Yuen what kind of dangerous drugs and the quantity of dangerous drugs that he was referring to, he initially informed the court that his instruction was that the defendant consumed heroin hydrochloride although he could not specify the exact amount or quantity. 

9.  Mr Yuen also referred the court to what the defendant had said under caution in the Summary of Facts that he mostly consumed heroin at about 6 to 7 pellets a day.  I immediately drew Mr Yuen’s attention that his client had given somewhat a contradictory statement as what he told the police in the antecedent statement was that he was a drug addict of “Ice” and he spent about $600 a day for buying “Ice”.

10.  I also made it plain to Mr Yuen that he had to clarify the position with the defendant, and if needs be, he had to consider very carefully whether to call the defendant to explain and assert his position.  A short adjournment was granted to the defence, enabling Mr Yuen to seek further instructions from the defendant.  As a result, Mr Yuen informed the court that he was not going to call the defendant.  He also fairly conceded that the defendant’s last conviction in June this year was also in relation to “Ice” and not heroin.

11.  I then indicated to Mr Yuen that I might, in view of the situation, ask to see the DATC pre-sentencing report to see if what light can be shed on the issue.  It was until then that I was finally informed by Mr Yuen that the defendant finally decided to change his position by asserting that in this case, he was only consuming “Ice” but not heroin.

Sentencing considerations

12.  Drug trafficking is of course a very serious offence and because of this, the courts have repeatedly emphasised that whoever takes part in such evil business irrespective of his or her background can expect no mercy from the court. 

13.  The present case involves four different kinds of dangerous drugs.  While heroin forms the most of the quantity of the dangerous drugs, the most serious drugs in terms of potency must be “Ice”. 

14.  When it comes to sentencing different kinds of drugs, there is the individual approach to sentencing and also the combined approach.  The individual approach is to look at each component of the cocktail or batch and then to sentence by adding up the different sentences relevant to each individual drug.  The combined approach involves calculations of the applicable sentence for the more or most serious drug in terms of potency, then to take into account significant quantities of other (less serious) drugs and enhancing the sentence.  Whichever approach is appropriate depends on the circumstances of the case though the combined approach will often be the better one to enable the judge to sentence fairly, realistically and in a common-sense manner.  

15.  The Court of Appeal has already laid down different guidelines for the different dangerous drugs in question.  For “Ice”, up to 10 grammes of quantities, the starting point is 3 to 7 years’ imprisonment.[1] For heroin, between the quantities of 10 grammes to 50 grammes, the starting point is between 5 to 8 years.[2]  For cocaine, the sentencing guideline for heroin is applicable to cocaine.[3]  Lastly, for ketamine, up to 1 gramme, the Court of Appeal has said that it is within the sentencing discretion of the court.  Usually, it is generally below 2 years.[4]

16.  In the present case, I shall adopt the combined approach.  The most serious kind of dangerous drugs is “Ice” and there is 1.87 grammes of “Ice” in this case.  According to the guidelines, it carries a starting point of 3 years.  Taking into account the presence of the other three different kinds of dangerous drugs, with the most quantity being heroin (17.88 grammes), according to the guideline, that alone will attract a starting point of 6 years’ imprisonment.  I shall therefore use 3 years as the basic starting point and then enhance this starting point by taking into account the different quantity of the dangerous drugs involving heroin, cocaine and ketamine.  In the end, I add 4 more years to reflect the present quantity of these three different kinds of dangerous drugs.  Thus, the basic starting point before any deduction would be 7 years’ imprisonment.

Self-consumption

17.  The Court of Appeal has recently in the case of HKSAR v Liu Ming Sze CACC 103/2016 (unreported) made it plain that the discount of self-consumption as stated in the often-cited case of HKSAR v Chow Chun Sang [2012] HKLRD 1121 only applies when the portion of self-consumption is significant.

18.  In this case, the defendant had finally conceded that he was only an “Ice” habitual user but a large quantity of the dangerous drugs involved was made up by heroin.  One may still argue that although defendant was mostly abusing “Ice”, as “Ice” is the more serious drug, it is still of a significant portion.

19.  In considering such a suggestion, I refer myself to the case of HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69 in which the Court of Appeal has suggested a whole list of factors to consider whether to accept a submission that a significant proportion of drugs was intended for self-consumption.  While it is true that the defendant had in the past only possession of dangerous drugs convictions, however, when the drugs were discovered in the present case, it was not discovered in his place of abode or in a hotel room.  Rather, it was in a car.  In other words, it was being carried in a public place, and because of this, there was also no presence of any paraphernalia associated with the taking of the drugs such as an “Ice” flask.  Also, the explanation that the defendant was residing in a hotel room is very dubious especially in light of the fact that he later told the police that he was in fact residing with his parents.

20.  The street value of the drugs was said to be about $17,000.  Although the defendant now produced a letter from his employer stating that he had earned about 33,000 a month, his initial answer to the police was that he was only earning $20,000 a month.  Up to now, there is no explanation why there is such a discrepancy.  Coupled with the fact that if what he said was true that he had to spend money on renting different hotel rooms and also personal living expenses, I could not see how he could be able to purchase such a large bulk of quantity of dangerous drugs. 

21.  Also, while I accept that he might be a habitual user of “Ice”, taking into all the above factors into consideration, I come to the decision that I would not accept that for the present quantity of drugs, any part of the “Ice” was for his own consumption but I find that all of the “Ice” in question was in fact for the purpose of trafficking.  I would not therefore further reduce the sentence on account of self-consumption.

22.  The defendant pleaded guilty which is the single most effective mitigating factor, for which he would still be entitled to the one-third discount.  As I said, I would use 7 years as the starting point.  After reduction, the sentence is therefore 56 months’ imprisonment, and this is the sentence that I shall pass to the defendant.