HKSAR v. LAU YIU FAI

DCCC 242/2021

[2021] HKDC 1622

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 242 OF 2021

________________________

________________________

REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug" (Charge 1), a charge of "Possession of a dangerous drug" (Charge 2), a charge of "Possession of an apparatus fit and intended for the inhalation of a dangerous drug" (Charge 3)  and a charge of "Handling stolen goods" (Charge 4).

Summary of Facts

2.  About 1:07 a.m. on 6 September 2020, at the junction of Norfolk Road and Waterloo Road, DPC 12028 (PW1)  stopped the defendant for enquiry.

3.  Upon search, PW1 found in the defendant's front trouser pocket a key card to Room 119 of The Ten Hotel ("the Room")  situated at No.10 Norfolk Road.  The defendant said he rented the Room on 5 September 2020.

4.  The Police searched the Room with the defendant's consent.  PW1 used the key card found on the defendant to open its door.  The following items were found :-

Inside a desk drawer

(a)  a red box which contained a resealable plastic bag containing: 1 resealable plastic bag which contained 6.23 grammes of a crystalline solid containing 6.19 grammes of methamphetamine hydrochloride (E2); 1 resealable plastic bag which contained 13.1 grammes of a crystalline solid containing 0.08 gramme of methamphetamine (E3); and 1 resealable plastic bag which contained 46.8 grammes of a crystalline solid containing 0.17 gramme of methamphetamine (E4);

(b)  a green bag which contained: 2 electronic scales; and 1 transparent U shaped glass tube with straw (E28);

(c)  a blue bag which contained 1 resealable plastic bag containing a pile of resealable plastic bags;

(d)  a rainbow coloured bag which contained: 1 resealable plastic bag containing a pile of resealable plastic bags; 1 resealable plastic bag containing 0.28 gramme of cannabis in herbal form; and 1 resealable plastic bag containing a hand rolled cigarette which contained 0.05 gramme of cannabis in herbal form;

Inside the lower drawer of the night stand

(e)  a glass bottle with straw (E7); and

(f)  a plastic bottle which contained 36 millilitres of a liquid containing 0.01 gramme of a solid containing methamphetamine (E8).

5.  A further body search was conducted on the defendant in the Room.  PW1 found:  a resealable plastic bag which contained 0.52 gramme of a crystalline solid containing 0.52 gramme of methamphetamine hydrochloride (E1)  (inside the defendant's left sock); $4,564 cash; 2 mobile phones and a Volkswagen car key ("the Dummy Key").

6.  The defendant was arrested for "Trafficking" and "Possession of apparatuses".  Under caution, he said "All the stuff belong to me.  I use them for self-consumption and my girlfriend is not involved."  He also said "I use the ICE pipe to smoke dangerous drugs.  My girlfriend did not know; she is not involved."

7.  Almost at the same time, police officers arrested a male surnamed Chu at Prince Edward Road West when he unlocked a Volkswagen private car with chasis number WVWZZZ3CZAE144022 ("the Car")  displaying a false plate number RM6720.

8.  Upon checking, the Police discovered that the Car was a stolen vehicle which belonged to a Mr. Wong.  Its genuine plate number was UV3160.

9.  In view of the the Dummy Key found on the defendant, the Police escorted him to the Car for investigation.  Upon trying, it revealed that the Dummy Key could not open any doors or start the engine of the Car.  On the other hand, when the Car's engine had been started using Chu's key, if one quickly pulls out Chu's key and inserts the Dummy Key, the engine could be kept running and the Car would remain in operation.

10.  The defendant was on the spot arrested for "Taking conveyance without authority".  Under caution, he claimed that he bought the Car from a friend in mid-August and then sold it to another friend on 4 September.  The defendant said he knew nothing about this.

11.  In his video recorded interview, regarding the dangerous drugs found, the defendant admitted that he would purchase drugs from a Pakistani male at MacPherson Playground about once every 3 days.  Each time, he would purchase at least 7 grammes of ICE and $100 to $200 worth of cannabis.  He bought a scale to weigh the drugs so that he would not be cheated.  About half a month ago, he purchased 2 large packets of ICE (28 grammes each), but they turned out to be "fake" since they irritated his throat.  So he just put them aside.  If he could not finish the ICE, he would give them to his friends for free.  The defendant said he smokes at least 2 to 3 grammes of ICE per day using an ICE pipe.  He also admitted that he would smoke cannabis if he feels emotional after smoking ICE.  The resealable plastic bags and electronic scales were for separating the drugs into small packets of 1 gramme each.

12.  Regarding the smoking apparatuses, the defendant admitted that he bought the ICE pipe and last used it in the previous evening.  E28, E7 and E8 all belonged to him.  He had used them to smoke drugs.

13.  Regarding the Car, the defendant claimed that he purchased it on 18 August 2020 from a female acquaintance who told him that her boyfriend had cars to sell.  The defendant purchased the Car by paying $5,000 in cash.  He was told by the seller that the registration documents of the Car would be passed to him later when the seller has discharged all his debts and that the vehicle licence was valid till November.  The defendant decided to sell the Car later since it consumed petrol heavily.  Through the introduction of his friends, the defendant sold the Car to Chu at $20,000 in cash on 5 September 2020.  He gave Chu the original car key but had forgotten about the Dummy Key.

14.  The defendant now admits that he possessed E1 to E4 for the purpose of unlawful trafficking.  He also admits that he dishonestly received the Car, knowing or believing it to be stolen goods.

Mitigation

15.  The defendant is 35 and has 16 conviction records, which included 1 "Trafficking" offence and 4 "simple possession" offences. He also has convictions of at least 5 dishonesty-related offences.  Defence counsel Ms. Lau informed me that the defendant is single and resides with his mother (aged 70).  Prior to his arrest, he was a decoration worker earning $17,000 to $18,000 per month.

16.  In mitigation, Ms. Lau explained that the defendant suffers from dislocation of cervical spine, which causes him insomnia and numbness in his left arm.  He sustained such an injury in a fight when he was young.  Unfortunately, such symptoms seem to be permanent.  As a result, the defendant foolishly resorted to taking ICE to reduce his pain.  Ms. Lau submitted that most of the ICE found was for self-consumption by the defendant.  He would offer some to his girlfriend which constituted social trafficking.  They were together in the Room at the time of his arrest. Out of love, the defendant tried to protect his girlfriend by claiming that all the items belonged to him and that she knew nothing about it.  Yet, the defendant's girlfriend has not visited him once since his remand in jail custody.  He was hurt and disappointed.

17.  Regarding Charge 4, Ms. Lau submitted that the defendant's fault was he bought the Car at an unreasonably low price without verifying its origin.  He sold the Car to Chu but retained the Dummy Key without realizing it.  The Dummy Key was with the defendant's girlfriend when the defendant was arrested.  He sold the Car to Chu through his girlfriend.

Sentence

Charge 1

18.  Drug abuse has always been a problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it in the capacity of a seller or courier)  and that drug traffickers would most certainly be punished by long-term imprisonment, so that there is a deterrent effect.

19.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in ICE (see HKSAR v Tam Yi Chun [2014] 3 HKLRD 691).  For up to 10 grammes, the sentence ranges from 3 to 7 years' imprisonment.  The defendant trafficked in at most 6.96 grammes in the present case.  Applying a strict arithmetical approach, the appropriate starting point for Charge 1 is 5 years and 9 months.

20.  The defendant is no stranger to drug-related offences.  This is also his 2^nd "trafficking" conviction.  I consider a starting point of 5 years and 9 months' imprisonment to be appropriate and just. 

21.  Regarding his claim for self-consumption, I have reminded myself of the relevant sentencing principles[1]. I accept that the defendant was an ICE user.  In relation to the quantity claimed for self-consumption, the prosecution takes a neutral view.  Although the total quantity of ICE found was not so significant that the defendant could not possibly consume it all, packaging paraphernalia such as electronic scales and a considerable number of empty resealable plastic bags were found in the Room.  Furthermore, E1 (a small packet of 0.52 gramme of "pure" ICE)  was found inside the defendant's left sock.  If he had intended to smoke ICE in the Room, why would he need to carry E1 with him on the street?  Having duly considered all matters, I am prepared to reduce the starting point to 60 months[2] to reflect the discount for self-consumption.

22.  With his timely guilty plea, the sentence is reduced to 40 months.   Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 40 months' imprisonment.

Charge 2

23.  Only 0.33 gramme of herbal cannabis is involved. With the defendant's previous similar convictions, I adopt a starting point 3 weeks' imprisonment.  With his timely guilty plea, the sentence is reduced to 2 weeks.   I sentence the defendant to 2 weeks' imprisonment.

Charge 3

24.  For this charge, the usual sentence is 3 months' imprisonment after plea[3].  I have no reason not to follow it.  Hence, I adopt a starting point of 4.5 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 3 months.  I sentence the defendant to 3 months' imprisonment.

Charge 4

25.  There is no evidence suggesting that the defendant was in any way involved in the stealing of the Car.  I accept Ms. Lau's submission that the defendant's fault was he bought the Car at an unreasonably low price without verifying its origin.  Furthermore, the Car has been recovered.  On this basis, I adopt a starting point of 15 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 10 months.  I sentence the defendant to 10 months' imprisonment.

Overall sentence

26.  Bearing in mind the totality principle and the nature of the offences, I consider a global starting point of 6 years' imprisonment appropriate for Charges 1 to 4. With the timely guilty pleas, the overall sentence is reduced to 48 months.  To achieve this, I order the sentences to run in the following manner :-

(i)  Charges 1 to 3 concurrent; and

(ii)  8 months in Charge 4 consecutive to Charges 1 to 3.