HKSAR v. LEE SHEK TSUI AND ANOTHER

HCCC 443/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 443 OF 2014

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

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COURT: The 1st accused, Mr Lee Shek-tsui, faces a charge of tenant permitting premises to be used for unlawful trafficking in a dangerous drug, contrary to section 37(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

The particulars of offence are that the 1st accused on the 13th day of March 2014, being the tenant of the premises, namely 1st Floor, Ka Fung Mansion, 109-111 Prince Edward Road West, Mong Kok, Kowloon in Hong Kong, permitted the said premises to be used for unlawful trafficking in a dangerous drug, namely methamphetamine hydrochloride.

The 2nd accused faces a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The particulars of offence are that the 2nd acussed on the 13th day of March 2014 at 1st Floor, Ka Fung Mansion, 109‑111 Prince Edward Road West, Mong Kok, Kowloon in Hong Kong, unlawfully trafficked in a dangerous drug, namely 107.49 grammes of a crystalline solid containing 104.31 grammes of methamphetamine hydrochloride.

The charges faced by the two accused are respectively Count 1 and Count 2 in the indictment.

The 1st accused pleaded guilty to Count 1, whilst the 2nd accused pleaded not guilty to Count 2. She is, however, convicted unanimously by a jury of Count 2 after trial.

Facts admitted by the 1st accused and evidence at the trial of the 2nd accused

According to the facts admitted by the 1st accused, police officers on 13 March 2014 raided the premises at 1st Floor, Ka Fung Mansion, 109-111 Prince Edward Road West, Mong Kok, Kowloon (“the premises”).

Inside the mah-jong room of the premises there were four persons including the two accused. Police found on the floor inside the room near the mah-jong table a plastic bag containing 27.25 grammes of a crystalline solid of which 26.35 grammes were methamphetamine hydrochloride, commonly known as “Ice”.

Under the sofa inside the same room the police found a pink plastic bag containing 4 plastic bags, inside which there were a total of 80.24 grammes of a crystalline solid containing 77.78 grammes of methamphetamine hydrochloride.

The 1st accused said at the scene that he did not know what the two batches of “Ice” were and to whom they belong.

In a subsequent video-recorded interview, the 1st accused said that the 2nd accused would come to the premises to play mah-jong every two to three days, bringing along “Ice” for sale and consumption there, and she had taken “Ice” to the premises on three occasions. There were also instances when the 2nd accused delivered dangerous drug from the premises, or people collecting dangerous drugs from the 2nd accused.

On the date in question, the 2nd accused produced the dangerous drug found on the floor near the mah-jong table and asked the 1st accused if he wanted it, which the 1st accused declined.

The 1st accused was a tenant of the premises, but he did not stop the 2nd accused because they were friends and he did not want to cause trouble.

The 1st accused rented the premises on 10 December 2013 with the lease running until 9 December 2015 at a monthly rental of $8,500.

The street value of the “Ice” found in the premises was $56,325.

During the trial of the 2nd accused, there is no dispute as to the finding of the “Ice” inside the premises.

The prosecution relies on the admissions of the 2nd accused in the video-recorded interview. Despite denying having any knowledge of the “Ice” and to whom it belonged under caution, the 2nd accused confessed in the video-recorded interview that it was the 1st accused who had told her to get 240 grammes of “Ice” from a person named “Tai Fat Chai”.

As “Tai Fat Chai” only had about 100 grammes of “Ice” on his person, “Tai Fat Chai” delivered the “Ice” to the premises and gave them to the 2nd accused.

After the 2nd accused had taken hold of the dangerous drug, she gave them to the 1st accused. She paid $8,000 to “Tai Fat Chai” and was to receive $8,400 from the 1st accused, $400 being her reward.

The 2nd accused gives evidence during the trial that she was induced and threatened by a police officer to say what he told her in the video-recorded interview.

The 2nd accused says that what she said in the video‑recorded interview were not true. “Tai Fat Chai” never delivered any dangerous drug to the premises. He had only come to the premises at the request of the 1st accused to collect from her $8,000, being the mah-jong sum she owed the 1st accused to offset the same amount of money which the 1st accused owed “Tai Fat Chai”. The 2nd accused denies to have trafficked in the “Ice”.

Criminal record

The 1st accused has five previous convictions, including one possession of a dangerous drug and one trafficking in a dangerous drug. He was last convicted of an offence of trafficking in a dangerous drug on 28 December 2009 and was sentenced to 16 months imprisonment.

The 2nd accused has one previous conviction of possession of a dangerous drug and one previous conviction of trafficking in a dangerous drug. She was last convicted of the offence of trafficking in a dangerous drug on 23 July 2007 and was sentenced to 12 months imprisonment.

Mitigation

The 1st accused is aged 52, divorced with two daughters and one son. He was a construction site worker earning $800 a day, working about 15 to 20 days a month. The 1st accused supported his son who is receiving tertiary education, while the two daughters are living with the mother.

The 1st accused rented the premises together with a friend in order not to cause disruption to his son in his studies.

Counsel for the 1st accused stresses that the 1st accused had derived no benefits from the illegal acts of the 2nd accused and is remorseful for not stopping the 2nd accused from doing it. Counsel for the 1st accused submits the letter of mitigation of the 1st accused and his son.

The 1st accused points out in his letter that he rented the premises with a friend because the public housing unit in which he lived was too small and his son was studying in University. He stresses in the letter that he committed the offence out of ignorance of the law. He had derived no benefits from what the 2nd accused did and is remorseful for allowing her to do so.

The son says in the letter that he is studying physical education in the Hong Kong Institute of Education. He expresses good opinion of his father. Both the father and son ask for the mercy of the court.

Counsel for the 1st accused cites the case of HKSAR v Ho Wing To & Anor CACC264/2010 for the reference of the court. He urges the court to be lenient to the 1st accused.

The 2nd accused is aged 43, divorced with one daughter who is studying in Hang Seng Management College. The 2nd accused is proud of her daughter.

Counsel for the 2nd accused points out that after the 2nd accused was arrested she offered to assist the police and gave a statement on 26 June 2014. Although it did not result in any fruitful investigation, it shows the cooperative attitude of the 2nd accused.

Counsel for the 2nd accused points out that during the trial most of the evidence of the prosecution is agreed, thus saving tremendous court time and manpower. Counsel for the 2nd accused urges the court to be lenient to the 2nd accused.

Sentence

The offence of tenant permitting premises to be used for unlawful trafficking in a dangerous drug carries a maximum sentence of 15 years’ imprisonment and a fine of $5 million. It is no doubt an offence of a serious nature.

The Court of Appeal has not laid down any sentencing guidelines for this offence.

As explained in the case of Ho Wing To & Anor cited by counsel for the 1st accused, the gravity of the offence can vary greatly, thus no meaningful sentencing guidelines can be laid down.

In this authority, the Court of Appeal after reviewing a number of cases dealing with the sentence of this offence, held that for such an offence in which 34.33 grammes of “Ice” and 17.12 grammes and 29.8 grammes of ketamine in powder and tablet form respectively, in the total value of about $26,000, the starting point should be 3 years imprisonment.

In the present case, as in the authority, there is no evidence of how long the “Ice” in question had remained in the premises. However, the amount of dangerous drugs and their value are greater than those in the authority.

There is also an admission from the 1st accused that this was not the first time he allowed the 2nd accused to traffic in a dangerous drug in the premises.

The court is of the view that the present case is more serious in gravity than the authority.

Having considered this authority and all the related cases, the court adopts a starting point of 4 years imprisonment.

Giving credit to the plea of guilty of the 1st accused, the court sentences him to 2 years 8 months imprisonment for Count 1 in the indictment.

The Court of Appeal laid down sentencing guidelines for the offence of trafficking in “Ice” in AG v Ching Kwok Hung [1991] 2 HKLR 125. For a quantity of 70 to 300 grammes of “Ice”, the starting point is 10 to 14 years imprisonment.

The amount of “Ice” involved in the present case is 104.31 grammes. The starting point is, therefore, about 10 years 7 months imprisonment.

Although the sentencing tariffs for trafficking in “Ice” were revised in HKSAR v Tam Yi Chun (No 2) [2014] 4 HKC 256, the judgment of the case was handed down on 9 June 2014 which was after the commission of the present case. It is therefore not fair to the 2nd accused to adopt the new sentencing tariffs.

Having considered the whole circumstances of the case, the court sees no reason to depart from the old sentencing guidelines thus adopting 10 years 7 months imprisonment as the starting point.

The 2nd accused is convicted after trial and there is no valid ground of mitigation. The 2nd accused is therefore sentenced to 10 years 7 months imprisonment.