HKSAR v. KWOK TSZ ON also known as KWOK CHI ON and KWOK TZE ON AND ANOTHER

DCCC 788/2017

[2018] HKDC 282

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 788 OF 2017

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REASONS FOR SENTENCE

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1.  Both defendants are convicted on their own plea to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (the first charge).  The 2^nd defendant was also convicted on his own plea to a charge of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (the second charge).

Summary of facts

2.  The summary of facts which were agreed by both the defendants provide that, at around 10:38 pm on 27 May 2017, plainclothes police officers intercepted D1, who was then opening the door of his own residence.  Upon execution of a search warrant, police officers entered his residence and found in the living room, D2 sitting on the sofa in front of a black foldable table with dangerous drugs and packaging paraphernalia on it.

3.  The following dangerous drugs and packaging paraphernalia were found on the table, seized and subsequent delivered to government laboratory for examination and analysis:-

(1) 7.2 grammes of mixture (Exhibit E3) containing 5.36 grammes of heroin hydrochloride and one plastic spatula on a piece of paper;

(2) 18 plastic wrappings, each was opened and had a mixture containing heroin hydrochloride on it, the mixture collectively weighed 3.05 grammes and contained 2.29 grammes of heroin hydrochloride (Exhibit E4).

(3) one green plastic container (Exhibit E5), with:

(a) one plastic bag containing 12 packets (consisting of plastic wrappings) containing a total of 2.02 grammes of a mixture containing 1.51 grammes of heroin hydrochloride (Exhibit E6);

(b) one plastic bag containing 10 packets (consisting of plastic wrappings) containing a total of 1.66 grammes of a mixture containing 1.24 grammes of heroin hydrochloride (Exhibit E7);

(c) one plastic bag containing 10 packets (consisting of plastic wrappings) containing a total of 1.66 grammes of a mixture containing 1.23 grammes of heroin hydrochloride (Exhibit E8);

(d) one plastic bag containing 5 packets (consisting of plastic wrappings) containing a total of 0.85 grammes of a mixture containing 0.62 grammes of heroin hydrochloride (Exhibit E9);

(e) one plastic bag containing 1 packet (consisting of plastic wrappings) containing a total of 0.09 grammes of a mixture containing of heroin hydrochloride (Exhibit E10);

(f) one paper packet containing 0.09 grammes of crystalline solid containing methamphetamine hydrochloride (Exhibit E11);

(g) one plastic bag containing 0.53 grammes of cannabis in herbal form (Exhibit E12);

(h) one plastic bag containing 3.87 grammes of a powder, containing caffeine, which is not a controlled substance under Dangerous Drugs Ordinance nor Part I of the Poisons List of the Pharmacy and Poisons Ordinance;

(i) one plastic bag containing 0.34 grammes of a mixture containing 0.25 grammes of heroin hydrochloride (Exhibit E14);

(4) one electronic scale; and

(5) one lighter (Exhibit E16), a pair of white scissors (Exhibit E17), 101 pieces of packing plastic sheet (each around 7 cm x 7 cm) (Exhibit E18) and a stack of paper.

4.  Upon search near the table, one pair of blue scissors (Exhibit E21), 71 transparent resealable plastic bags (Exhibits E22 and E23) were found in a transparent plastic box on a red foldable chair. 

5.  D1 was then arrested and, under caution, he stated, inter alia, that he weighed and packed the “No 4” on the foldable table.  The “No 4” was brought there by “Ah Chuen” to be “dealt with” by them together.  Cautioned statement at scene was recorded in a police notebook with D1’s acknowledgement.

6.  D2 was also arrested.  Under caution, D2 stated, inter alia, that he brought “No 4” there from Kowloon, to be “dealt” with by him and “Ah On” together.  He bought the cannabis and the “Ice” in Kowloon for his own consumption.

7.  Cautioned statements at scene were recorded in a police notebook of PC18096 with D2’s acknowledgement, in particular, D2 wrote “I understood” below his cautioned statement and signed below that.

8.  In D1’s video recorded interview conducted in the evening of the next day, under caution, D1 stated, inter alia, that:-

(1) when the photo of the table with dangerous drugs and packaging paraphernalia (taken upon entry by the police officers) was shown to him, he confirmed that the photo was taken before anything on the table were moved by the police officers;

(2) the word “No 4” in his cautioned statement at scene meant “heroin”;

(3) the word “dealt with” in his cautioned statement at scene meant “packing”;

(4) the plastic spatula was used to transfer the heroin;

(5) the 18 numbers of opened plastic wrappings on the table with heroin on each of them would be sold after packing;

(6) the heroin would be sold to “YP Hung” at $150 per packet;

(7) he knew Exhibits E3, E4, E6 to E10 and E14 contained heroin;

(8) he knew Exhibit E12 contained cannabis;

(9) the plastic sheets (Exhibit E18) was used to wrap the heroin; and

(10) the lighter (Exhibit E16) was used to seal the plastic wrappings of heroin;

(11) the scissors (Exhibits E17 and E21) were used to cut the heroin into smaller pieces;

(12) he was the only resident in this premises and only he had the keys of the doors of this residence;

(13) he was responsible to wrap the heroin with plastic sheets, seal the wrappings with a lighter and then put the packets of heroin into resealable plastic bags.

9.  In D2’s video recorded interview conducted in the evening of the next day and the early morning thereafter, under caution, D2 stated, inter alia, that:-

(1) when the photo of the table with dangerous drugs and packaging paraphernalia (taken upon entry by the police officers) was shown to him, he confirmed that the photo showed the condition of the table before his arrest;

(2) that he knew Exhibits E3 and E4 contained heroin;

(3) that he lived in Shatin and went to these premises at 4 to 5 pm on 27 May 2017.

10.  The footage of the CCTV installed in the building within which this residence of D1 was situated revealed that on 27 May 2017, D1 entered the building at around 4:16 pm and D2 entered the building at around 4:04 pm. 

11.  Later, a government laboratory issued a Government Chemist certificate in relation to the dangerous drugs seized from the residence of D1 (Exhibit E40).

12.  Exhibits E3, E4, E6 to E10 and E14 containing dangerous drugs, namely a total of 16.87 grammes of mixture containing 12.5 grammes of heroin hydrochloride (subject of the first charge).

13.  Exhibits E11 and E12 contained dangerous drugs, namely a mixture of 0.09 grammes of crystalline solid containing respectively methamphetamine hydrochloride and a mixture of 0.53 grammes of cannabis in herbal form (subject of second charge).

14.  The market value of the heroin hydrochloride seized is estimated to be around HK$9,500.  The methamphetamine hydrochloride and the cannabis seized is HK$26.5 and HK$140 respectively.

15.  At all material times, the defendants possessed the heroin hydrochloride seized for the purpose of trafficking (subject of the first charge).

16.  At all material times, D2 was in possession of methamphetamine hydrochloride and cannabis seized (subject of second charge).

Previous convictions

17.  D1 has 20 previous convictions, of which nine are related to drugs.  There is no similar conviction to Charge 1.

18.  D2, however, has 19 previous convictions of which three are similar to Charge 1 and four are similar to Charge 2.  This court noted that the latest of the trafficking conviction dated back to the year 1990.

Mitigation

19.  Mr Tong, appearing for D1, submitted that D1 is aged 61, that he had received education up to Form 3 level, and that he had worked as a decoration worker for around 20 years until 1996 when he became unemployed.  He was said to be suffering from acute depression and had been receiving treatment from hospital.

20.  It was submitted on his behalf that he had committed the offence in order to help D2 in packaging of dangerous drugs, and that at that time he did not appreciate the seriousness of the offence.

21.  Mr Tong asked this court to adopt the guideline in Lau Tak Ming, CACC230/1989 and asked this court to use 5 years as a sentencing starting point in this case.  He also asked this court for the full one-third sentencing discount as D1 had co-operated with police and had a timely guilty plea.

22.  Miss Hung submitted on behalf of D2 that D2 is aged 65.  He received education up to Grade 2 level in primary school and that at the time of the offence he was living with his son and his family in a public housing estate.  He said he received no contribution from the son except that he would be residing there free of charge, that D2 was unemployed and had been receiving CSSA of $3,201 per month since 2009.  His wife died five years ago and he had since lost direction in life and had been using drugs, consuming drugs three times a day, using roughly $150 per day.  She submitted that, as the income is not sufficient to cover his drug habit, he therefore resort to drug-trafficking.

23.  Again, she asked this court to adopt 5 year as the sentencing starting point in this case and also to give D2 full one-third discount for his timely plea.

24.  Further, it is submitted that, as part of the drugs are for his own consumption, that this court should follow the case of Chow Chun Sang, CACC 135/2011 and give D2 further sentencing discount.

Sentence

25.  Trafficking in a dangerous drug is a very serious offence and heavy sentence is imposed for general and individual deterrence.  Usual mitigation like financial hardship can hardly be a valid mitigation ground.

Charge 1

26.  The estimated market value of the heroin hydrochloride seized is $9,500 roughly and that of methamphetamine hydrochloride and cannabis seized is respectively $26.5 and $140.

27.  The narcotic content of the dangerous drugs involved in Charge 1 is 12.5 grammes of heroin hydrochloride and, following the sentencing guideline for trafficking in heroin as laid down in the case of Lau Tak Ming, the band of sentence should lie between 5 to 8 years. 

28.  Considering the amount of drugs is in the lower end of the band, the band being from 10 gramme to 50 gramme, I will adopt a sentencing starting point of 5 years and 3 months’ imprisonment.

29.  For D1, the only useful mitigation factor is his timely guilty plea and he is entitled to full one-third sentencing discount.

30.  Accordingly, D1 is sentenced to imprisonment for 3 years and 6 months for Charge 1.

31.  Turning now to D2, although he had three previous similar convictions, this court noted they were committed more than 25 years ago and I do not intend to enhance the sentence and because of his timely plea, he is also entitled to one-third discount.

32.  The fact that it was mitigated on his behalf that he committed the offence to fund his drug habit is not a mitigation factor.  The case is R v Wong Suet Hau, CACC 366/2000.

33.  As for the contention made on behalf of D1 that some of the drugs seized was for his own consumption, when asked how much of the dangerous drugs seized was intended by D2 to be for his own consumption, Miss Hung on behalf of D2, at the first instance said it would be difficult to say which part of the drugs are for his own consumption.  Later she said that most of the drugs in Charge 1 was intended for his own consumption and the third version that she said was that it is likely that the 7.2 grammes of mixture containing 5.36 grammes of heroin hydrochloride was for D2’s consumption.

34.  Today she has clarified that she is not submitting that significant portion of the drugs are for D2’s consumption, but merely that part of the drugs seized in Charge 1 is intended for D2’s self-consumption.

35.  In the summary of facts agreed by the defence, in fact, the 7.2 grammes of mixture was placed on a piece of paper together with one plastic spatula on top of a table, and on top of the same table there are number of plastic bags containing, for most of them, packets of heroinand other packaging paraphernalia, such as lighter, packaging, plastic sheets, scissors, electric scale.

36.  In the case of Wong Suet Hau, Court of Appeal said if it was submitted on behalf of the defendant that a significant portion of the drugs seized was intended for self-consumption, then the court should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the contention.

37.  The following factors, they say, should be considered, which a court should usually be able to determine without a Newton hearing:-

(a) the quantity and value of the drugs;

(b) the general circumstances, including how the drugs were wrapped and how many packets were found;

(c) where the drugs had been discovered, whether at a residential address owned or rented in the trafficker’s own name or in some other people’s name, or whether they were being carried in a public place;

(d) the presence of paraphernalia associated with the drugs, including on the one hand, items used for packaging, weighing and diluting drugs and on the other hand, items used for consumption;

(e) whether the defendant was an addict or a habitual user;

(f) the explanation given by the defendant following the arrest;

(g) the defendant’s general means and his ability to pay for his drugs otherwise than by trafficking in them; and

(h) the defendant’s criminal record in relation to previous drug offences.

38.  Considering the above factors in our present case:-

(a) estimated value of heroin seized is around $9,500;

(b) the way that the drugs were found on the table, with all the packaging paraphernalia on the table;

(c) the fact that the place was a residence of D1 and not that of D2 himself;

(d) the fact that the drugs said to be for the self-consumption of D2 is placed on a piece of paper unwrapped, together with a plastic spatula beside on the same piece of paper, and beside on the same table all the other packaging and weighing paraphernalia;

(e) the absence of items used for consumption, save maybe for the lighter, which, according to D1, was used to seal the plastic wrappings of heroin, but they might possibly be used in the consumption of drugs;

(f) the fact that defendant is a habitual drug user and that his only source of income is $3,201 from CSSA and then he says that he spends roughly $150 per day, meaning $4,500 per month, on drugs;

(g) as submitted on his behalf, that he trafficked dangerous drugs in order to earn extra income to fund his drug habit;

(h) upon arrest, D2 said under caution that he brought and bought the drugs to the premises for packaging by D1 and D2;

(i) D2 had the other drugs (i.e. subject matter of the second charge, “Ice” and cannabis) for his own consumption. He did not say anything under caution that the drugs in Charge 1 was for his own consumption;

(j) D2 had previous records of drug trafficking and drug-related offences;

(k) the fact that it was submitted on his behalf that it is difficult to say which part of the drugs seized was for his own consumption;

(l) the drugs in question estimated value of $9,500 is more than D2’s monthly drug expenses, which is around $4,500.

39.  For the above reasons, I do not accept the contention that either that the whole of the 7.5 grammes of mixture was for D2’s own consumption or that significant part of the heroin seized was for D2’s own consumption.

40.  Of course, today, Miss Hung has clarified that the mitigation in this respect on behalf of D2 was merely that D2 used part of the drugs in Charge 1 for his own consumption and for this reason I did not conduct a Newton hearing on this issue.

41.  The court does not accept that there is a significant portion of the drugs in Charge 1 intended for the self-use of D2, and D2 therefore is not entitled to the 10 to 25 per cent discount as in Chow Chun Sang case.

42.  In fact, the case of Chow Chun Sang referred to this court by Miss Hung had later been further discussed in the Court of Appeal case in Kong Tat Lung, CACC 27/2016, where Yeung VP, who had also sit in the Chow Chun Sang case, said in paragraph 55 of the judgment that, in the case of Chow Chun Sang, the trial judge had accepted that more than half of the “Ice” seized was for defendant’s own consumption, that in all the cases considered by the Court of Appeal in Chow Chun Sang case, the court had accepted that all of the dangerous drugs or most of the dangerous drugs concerned are for defendant’s self-consumption. 

43.  Yeung VP pointed out that, in considered cases of Secretary for Justice v Chan Chun Fai [2011] 3 HKLRD 116, R v Chung Kam Fai [1993] 1 HKCLR 178, HKSAR v Chow Kam Lung [2010] 4 HKLRD 253 in Chow Chun Sang case, all defendants were convicted of trafficking because of importing and exporting those drugs.

44.  In the Cheuk Kin Man case, CACC 294/2009, two-third of the drugs concerned were for defendant’s self-consumption.

45.  In the Kong Tat Lung case, in paragraph 58 of the judgment, it was said that the Court of Appeal does not say that, in drug-trafficking case, once the defendant had intended to use part of the drugs in question for self-use, albeit such small quantity, the defendant should be entitled to 10 to 25 per cent sentencing discount.  The recommendation for sentencing discount by the Court of Appeal is only applicable in cases where the defendant has significant part of the drugs for self-consumption.

46.  In paragraph 66 of the judgment, it is said that if the defendant submitted in mitigation that part of the dangerous drugs involved is for his own consumption, he shall inform the court whether his stance is that of a significant part of the drugs are for self-use or otherwise.  If he takes such a stance, the court will need to deal with the matter following the principle and procedure as set out in the case of Wong Suet Hau and, if need be, conduct a Newton hearing to determine if his saying is established.

47.  If defendant’s stance is only that part of the drugs and not significant proportion of the drugs seized is for his own consumption, then the court can, according to the particular circumstance of the case, consider whether there should be any sentencing discount in the exercise of its discretion and, if so, the extent of such sentencing discount.

48.  Considering the circumstances of this case, where this court accepts that it is possible that D2 intended part of the drugs for his own consumption, I am willing to exercise my discretion and afford D2 with a sentencing discount of 3 months.  In view of his drug habit and even though he had failed to have that said under caution, I cannot exclude that possibility.

49.  The sentencing starting point for D2 therefore becomes 5 years.

50.  Again, he is entitled to full one-third discount for his timely guilty plea.

51.  Accordingly, D2 is sentenced to 3 years and 4 months’ imprisonment for Charge 1.

Charge 2

52.  In relation to Charge 2, the quantity of drugs involved for both methamphetamine hydrochloride and cannabis in herbal form was respectively 0.09 and 0.53 grammes only. 

53.  D2 said these are for his own consumption.

54.  For possession of such quantity of narcotics, I consider appropriate starting point in sentencing would be 9 months.

55.  Taking into consideration of the timely plea, the same is reduced to 6 months.

56.  I am willing to, as suggested by Miss Hung, apply the totality principle so that the sentence in Charge 1 and 2 shall run concurrently.

57.  D2 is sentenced therefore in total to a sentence of 3 years and 4 months.