HKSAR v. IP KIM POR

DCCC 183/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 183 OF 2012

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Reasons for Sentence

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1.  The defendant has pleaded guilty to three charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, one count of claiming to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap 151, one count of inviting a person to become a member of a triad society, contrary to section 22(2) of the Societies Ordinance, Cap 151, and one charge of possession of equipment fit and intended for the inhalation of dangerous drugs, contrary to sections 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134.

2.  Since June 2011, the police conducted an undercover operation against triad activities in the Sheung Shui area.  PC 4116 was deployed to disguise himself as a casual transportation worker as well as a drug addict.  Disguised as a drug addict and customer, he bought dangerous drugs from the defendant on 3 occasions.

Charge 1

3.  At 1824 hours on 4 July 2011, PC 4116 received a phone call from the defendant who told him he had a stock of ice and asked PC 4116 if he wanted to purchase some.  PC 4116 answered in the affirmative, saying he wanted to order half a bag.  The defendant said he would deliver the drugs to him at Cheung Wah Estate in Sheung Shui.  At 1855 hours on the same day, PC 4116 met the defendant at the 7-11 Convenience Store at Cheung Wah Estate.  The defendant gave PC 4116 a bag, subsequently confirmed by the Government Chemist to be containing 0.22 grammes of a crystalline solid containing 0.21 grammes of methamphetamine hydrochloride, commonly referred to as ‘ice’.  PC 4116 paid the defendant HK$400 and they left separately.

Charge 2

4.  At about 1635 hours on 8 July 2011, PC 4116 received a phone call from the defendant who said he had a stock of ‘ice’ and asked PC 4116 if he wanted to purchase any.  PC 4116 said yes.  At 1728 hours on the same day, PC 4116 met the defendant at the 4/fl staircase of Cheung Chung House, Cheung Wah Estate, Sheung Shui wherein the defendant gave PC 4116 a bag, subsequently confirmed by the Government Chemist to be containing 0.20 grammes of ‘ice’ and PC 4116 paid the defendant HK$400.  They then left separately.

Charge 3, 4 & 5

5.  At about 1751 hours on 22 July 2011, PC 4116 received a phone call from the defendant who asked PC 4116 to go out for a talk.  At 1838 hours on the same day, PC 4116 and the defendant met at the 4/fl staircase of Cheung Chung House, Cheung Wah Estate, Sheung Shui.  The defendant told PC 4116 ‘you always purchase dangerous drugs from us.  Why don’t you follow me so that no one will bully you.”, the inviting charge and the defendant further said to PC 4116 “we are followers of the water (faction) of ‘Ko Lo Kai’ of Sheung Shui Wo Shing Wo. If you are bullied by anybody, you can disclose our name and nobody dare bully you”, the claiming charge.  The defendant gave PC 4116 a bag, subsequently confirmed by the Government Chemist to be containing 0.25 grammes of a crystalline solid containing 0.21 grammes of ‘ice’ and PC 4116 paid him HK$400. They then each left separately.

Charge 6

6.  At 0530 hours on 14 November 2011, DPC 64 located and arrested the defendant at Flat 222, Block 2, Choi Wu House, Choi Yuen Estate, Sheung Shui.  Upon search, the inhaling device as described in the particulars of charge 6 was found inside the sitting room.  Under caution, the defendant admitted the instrument belonged to him for consuming ice.  Upon examination by the Government Chemist, it was found to contain a liquid containing ‘ice’.

7.  According to my calculations, and Mr. Choi agrees, the total amount of ‘ice’ involved in the three trafficking transactions is 0.62 grammes of ‘ice’.

8.  The defendant has 23 previous convictions in 9 court appearances, as well as 3 occasions when he appeared in court for breach of a probation order.   He has previous convictions for possession of dangerous drugs in 1999 and 2012.  He has been to the DATC on 2 occasions, in 2000 and 2001.  His last conviction was for possession of dangerous drugs on 23 February 2012, when he was sentenced to 4 months’ imprisonment.  I note from the criminal record of the defendant that he has appealed this sentence.  This offence of possession of dangerous drugs was committed shortly before his arrest in November 2011 for count 6 on the indictment.

9.  After hearing Counsel in mitigation on behalf of the defendant, I adjourned sentencing, and called for a background report in respect of the defendant, which is now before me.  Although he has also been convicted on one count of equipment fit and intended for the inhalation of dangerous drugs (Count 6 on the indictment), I did not see the need to call for a Drug Addiction Treatment Centre Report as in my view the likely sentence would be an immediate custodial one likely to exceed 9 months’ imprisonment as he has also been convicted of three counts of trafficking in a dangerous drug (section 54A(1A)(a) of the Dangerous Drugs Ordinance, Cap 134 refers).

10.  The defendant is now aged 30 years.

11.  Save for his plea of guilty, there is really little else in mitigation before me. He comes from a broken family – his mother deserted the family many years ago, and he has been brought up by his father, who has come to court to show his support of the defendant.  His story is not an unusual one – owing to inadequate parental care and guidance, he went astray at a young age under undesirable influences.  His criminal record dates back to 1995, when he would have been about 14 years old.  He started taking heroin at the age of 15 years, with his first drugs conviction in 1999 when he would have been about 18 years old.  These present convictions are his first convictions for trafficking in dangerous drugs.  His employment has been irregular.  He became unemployed in mid-2011 and soon relapsed to taking drugs.  To support his drug habit, he resorted to trafficking in dangerous drugs.

12.  Although linked by the fact that all the sales were to the same undercover police officer, they were separate and distinct acts of trafficking over a period of about 19 days.  The fact that the police did not arrest the defendant after the first time that he sold the ice is not a ground to reduce the sentence.  The police are under no obligation to arrest after the first transaction thereby bringing to a premature end the undercover operation (see paragraph 12 of HKSAR v Ng Yau-kau & Anr, CACC 374/2007).  Counsel for the defendant had submitted that the defendant had a grievance – had he been arrested after the first act of trafficking, he would not have committed the subsequent acts.  The Court of Appeal in HKSAR v Lui Wai-kam, CACC 400/2009 said :-

“9. But, it is well established that in considering the overall sentence to be imposed on a person who has sold drugs to an undercover agent on a number of occasions “the combined weight …. was only one consideration to be borne in mind.” See per Stuart-Moore Ag CJHC in HKSAR v Lai Yau-fat, CACC 278/2000 (unreported, 6 December 2000 at page 4.

10. In HKSAR v Ng Yau Kau & Anr, CACC 374/2007 (unreported, 18 June 2008, Stuart-Moore VP and McMahon J), McMahon J in the judgment of the court said:

“10. It is not just the totality of drugs in the defendants’ possession which goes to the overall criminality of the offence, but also the separate acts of trafficking ….”

11. In HKSAR v Wong Nam Ngan, CACC 372/2001 (unreported, 17 January 2002, Stuart-Moore VP and Suffiad J), Suffiad J in giving the judgment of the court, made a similar observation. He said :

“19. although the quantities of the various drugs in each of the charges in this case are not large, it was the applicant’s persistence in the trafficking activities which made this a serious case.”

13.  The guidelines for sentencing with regard to trafficking in ‘ice’ are to be found in Attorney General v Ching Kwok Hung [1991] 2 HKLR 125 as amended in HKSAR v Capitania [2004] HKCU 926, and for trafficking in up to 10 grammes, the sentence ranges between 3 years and 7 years’ imprisonment.

14.  The total quantity of ‘ice’ in the 3 transactions of trafficking is 0.62 grammes.  Had this been one offence of trafficking, it would be at the lower end of the range of 3 to 7 years.  However, I do have to take into account the fact that it was on 3 separate occasions.

15.  Triad offences are treated seriously and attract at least a short term of imprisonment depending on the facts and the circumstances in which an accused claims or invites someone to be a member of a triad society.  There are no specific guidelines for offences of this nature except that imprisonment is appropriate.  I accept that this is not the worst of such offences – there was no use or threat of use of force.  The defendant claimed to the interviewing officer for the background report that the undercover police officer appeared to be emotionally upset at having been bullied by others and therefore he claimed to him that he was a member of a triad society and invited him to join the society so he would not be bullied. 

16.  These are all separate and distinct offences warranting consecutive sentences. In sentencing, I do bear in mind the totality principle of sentence and the overall criminality of the defendant. 

17.  The defendant is sentenced as follows:

Charges 1, 2 & 5 - 3 years’ imprisonment starting, one-third discount for plea, 2 years’ imprisonment on each count

Charges 3 & 4 - 6 months’ imprisonment starting on each, one-third discount for plea, 4 months’ imprisonment on each count

Charge 6 - 6 months’ imprisonment, one-third discount for plea, 4 months’ imprisonment

The sentences on charges 1 to 5 are to be concurrent, and the sentence on charge 6 is to be consecutive to that of the sentence on charges 1 to 5, so the total is 2 years and 4 months’ imprisonment.

18.  I can see no further matters to warrant my further reducing these sentences.