A A
B DCCC 1083/2015 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 1083 OF 2015
E E
-----------------
F HKSAR F
v
G G
LAI Man-lung
H H
-----------------
I I
J Before: Deputy District Judge Joseph To in Court J
Date: 29 April 2016 at 09:31 am
K K
Present: Mr Sammy HUI, Counsel on Fiat, for HKSAR/Director of
L Public Prosecutions L
Miss Anita MA, instructed by Messrs. Cheng & Wong,
M M
assigned by Director of Legal Aid
N Offences: [1] Trafficking in a dangerous drug （販運危險藥物） N
O O
P P
------------------------------------------------------
Q REASONS FOR SENTENCE Q
------------------------------------------------------
R R
S S
T T
U U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V
-2-
A A
B B
INTRODUCTION
C C
1. On 15 April 2016, the defendant appeared before this court
D D
and pleaded guilty to the two charges preferred against him by the
E prosecution, namely, trafficking in a dangerous drug, contrary to section E
4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (the first
F F
charge), and possession of apparatus fit and intended for the inhalation of a
G dangerous drug, contrary to section 36(1) and (2) of the Ordinance (the G
second charge).
H H
I 2. The court raised an issue with respect to the validity of the I
second charge. Neither the prosecution nor the defence appeared to have
J J
addressed their mind to the time limit 1 within which the second charge –
K which contained a summary offence2 – must be laid. Mr Sammy Hui, K
prosecuting on fiat, sought instructions from the Department of Justice and
L L
confirmed that when the defendant was prosecuted with the offence of
M possession of apparatus fit and intended for the inhalation of a dangerous M
drug in the second charge, the charge had already become time-barred. In
N N
consequence, the defendant’s guilty plea to the second charge was vacated,
O and the charge was formally withdrawn. In the end, the defendant was O
convicted, on his guilty plea, of the sole remaining charge of trafficking in
P P
a dangerous drug.
Q Q
FACTS
R R
S S
1
Section 26 of the Magistrates Ordinance, Cap 227
T T
2
Section 36(2) of the Dangerous Drugs Ordinance, Cap 134, provides: “Any person who contravenes
any of the provisions of subsection (1) shall be guilty of an offence and shall be liable on conviction to
U a fine of $10,000 and, subjection section 54A, to imprisonment for 3 years.” U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V
-3-
A A
B B
3. On the afternoon of 29 August 2014, a team of police officers
C demanded to enter the defendant’s residence at Room 1709, Yiu Hing C
House, Tin Yiu (I) Estate, Tin Shui Wai, New Territories, a public unit
D D
which was about to be returned to the Housing Authority. Several minutes
E later, the defendant answered the door. Inside the unit, the police found, E
apart from the defendant himself, two youngsters. As the defendant
F F
appeared to be nervous, the police conducted a search on him and found in
G his shoulder bag a total of five plastic bags containing what was G
subsequently found to be 9.63 grammes of a crystalline solid containing
H H
9.49 grammes of methamphetamine hydrochloride, commonly known as
I “ice”. The defendant was arrested for the offence of possession of a I
dangerous drug; under caution, he said the two youngsters had taken the
J J
five packets of “ice” to the unit to be consumed there.
K K
4. The police investigated into one of the two youngsters,
L L
namely Luk Wing-yin (“Luk”), who was then 17 years old. Under caution,
M he told the police that the defendant had taken the five packets of M
dangerous drugs to the premises, and that Luk himself had consumed some
N N
dangerous drugs there out of curiosity. The defendant was further arrested
O for trafficking in a dangerous drug; upon reminded caution, he said he had O
consumed “ice” for fun and that he had thrown the “ice” flask onto the
P P
street.
Q Q
5. In a subsequent cautioned interview, the defendant admitted
R R
that it was he who had taken the “ice” to the unit, “ice” that he had
S purchased, for his own use, at $2,400 in Mongkok. The defendant told the S
police that he had asked Luk to come up to his place, saying he had taken
T T
U U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V
-4-
A A
B B
some “ice” to the unit, and that after his arrival in the unit, Luk consumed
C “ice” there, using the “ice” flask. C
D D
6. Luk provided the police with the following information. On
E the day in question, the defendant asked him to go to the unit to assist him E
to change house. When Luk and his friend arrived, Luk saw the defendant
F F
consume “ice”. The defendant asked Luk and his friend if they would like
G to try. At the defendant’s invitation, Luk and his friend consumed “ice” in G
the unit.
H H
I 7. The police found three fingerprint impressions on the sticky I
side of the adhesive tapes of two of the five packets of “ice” concerned.
J J
The fingerprint impressions matched those of the defendant’s. The street
K value of the “ice” seized by the police in this case was $4,102. K
L L
8. Subsequent to his arrest, the defendant was granted police bail
M M
pending the conclusion of their enquiry. On 8 January 2015, he failed to
N
answer bail at Tin Shui Wai Police Station. It transpired, according to N
police investigation, that he had departed from Hong Kong to the mainland
O O
via the immigration control point at Lok Ma Chau. The defendant did not
P
return to Hong Kong until 23 November 2015, whereupon he was P
re-arrested.
Q Q
R 9. Arising out of the incident in the unit, Luk was charged to R
appear before a magistrate to answer a charge of inhaling a dangerous drug.
S S
He was convicted as charged on his own plea and was, on 14 April 2015,
T sentenced to probation for 18 months. T
U U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V
-5-
A A
B B
10. The prosecution have by their letter dated 7 January 2016
C given notice of their intention to make an application for enhancement of C
sentence pursuant to section 56A(1) of the Ordinance, on the basis that the
D D
offence committed by the defendant is a specified offence 3 and that it
E involves “the procuring, supplying or trafficking by whatever means of a E
dangerous drug for or to a minor for possession or otherwise by a person”4
F F
and “a person intentionally or unintentionally employing, hiring, using,
G persuading, enticing or coercing a minor in the commission of a specified G
offence.”5 Pursuant to the Ordinance, specified offences include, among
H H
others, the offences of trafficking in a dangerous drug6 and of inhaling a
I dangerous drug7. I
J J
11. The defence raises no objection to the prosecution’s
K application for enhancement under section 56A(1) of the Ordinance. K
L L
MITIGATION
M M
12. The defendant was born in Hong Kong in October 1981 and is
N N
now 35 years old. He has received education up to Form One level and has
O worked as a transportation worker. He has been unemployed since 2014 O
and has been living on Comprehensive Social Security Allowance. He is
P P
single but has two daughters aged nine and ten. He lives with his mother
Q and his two daughters. He has six criminal conviction records involving Q
six charges, none of which are similar to the subject offence. His criminal
R R
S S
3
Section 56A(8) of the Dangerous Drugs Ordinance, Cap 134
4
Section 56A(2)(a) of the Dangerous Drugs Ordinance, Cap 134
T 5
Section 56A(2)(d) of the Dangerous Drugs Ordinance, Cap 134 T
6
Section 4 of the Dangerous Drugs Ordinance, Cap 134
7
U Section 8 of the Dangerous Drugs Ordinance, Cap 134 U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V
-6-
A A
B B
records show that he has been sentenced to detention at a drug addiction
C treatment centre on two occasions. C
D D
13. In her plea in mitigation, Miss Anita Ma appearing for the
E defendant stresses, first of all, that at the time of the offence committed by E
the defendant, Luk was only two months short of his eighteenth birthday.
F F
While not disputing the court’s jurisdiction to enhance the sentence under
G section 56A(1) of the Ordinance, it is Miss Ma’s submission that Luk’s G
status as a minor at that time might not have been obvious to the defendant.
H H
I 14. By way of further background information, Miss Ma submits I
that the defendant has come from an exceedingly humble family, his
J J
mother having been repeatedly abandoned by the biological fathers of her
K children among whom the defendant is the eldest. The defendant’s mother, K
who is now 49 years old, suffers from poor health and is in need of regular
L L
medical attention. The defendant himself has two daughters, one of whom
M is retarded and is studying in a special school, while the other is normal. M
The defendant has started to take dangerous drugs in around the year 2000
N N
and has since then been sent to the DATC twice. The treatment provided
O by the centre did not, says Miss Ma, appear to be effective in the O
defendant’s case; the defendant ended up heavily addicted to dangerous
P P
drugs. Since 2008, the defendant has been using the social security
Q payment to purchase “ice” for his own use. Q
R R
15. As to the circumstances of the commission of the subject
S S
offence, Miss Ma submits that the defendant invited Luk to help to restore
T the unit to a state fit for delivery to the Housing Authority. Knowing that T
U U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V
-7-
A A
B B
Luk himself took “ice”, the defendant shared the “ice” with him and has
C derived no monetary gains from Luk. C
D D
16. Miss Ma refers the court to the following three cases
E concerning enhancement of sentence under section 56A(1) of the E
Ordinance: HKSAR v Wong Kwok-hung8, HKSAR v Chan Ka Shing9, and
F F
HKSAR v Ng Hon Keung10. Several mitigation letters are also handed up to
G the court. In summary, Miss Ma submits that the defendant has come from G
a very humble family and is a simple-minded person; she asks the court to
H H
pass a lenient sentence on him.
I I
CONSIDERATION
J J
K 17. Arising from the fingerprint evidence, it is clear that the K
defendant must have packed the “ice” himself. The court finds beyond all
L L
reasonable doubt, in all the circumstances of the case, that in addition to the
M social trafficking he has committed involving Luk, the defendant must M
have intended to supply the five packets of “ice” to others for gains.
N N
O 18. Two issues are raised in this sentencing hearing. First, Miss O
Ma argues that the defendant has had the intention to consume the “ice”
P P
himself, for which he should be given a reduction in sentence. Secondly,
Q the court has to assess the extent by which the sentence should be enhanced Q
under section 56A(1) of the Ordinance, in light of all the circumstances of
R R
the case.
S S
T 8
HKSAR v Wong Kwok-hung CACC225/2002 T
9
HKSAR v Chan Ka Shing [2012] 2 HKLRD 220
10
U HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017 U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V
-8-
A A
B B
19. The Court of Appeal in HKSAR v Chow Chun Sang11 dealt
C with the issue of partial consumption being relied upon as a ground of C
mitigation, and held:
D D
“19. We are of the view that in drug trafficking cases, when all or part
E of the drugs are intended for the trafficker’s own consumption, the E
ensuing discount to sentence should, depending on circumstances, fall
somewhere between 10% and 25% of the basic starting point. In
F determining the extent of discount in a particular case, the court should F
have regard to factors including the total quantities of the drugs involved,
G proportion of the drugs intended for self-use, the nature of the drugs, G
whether the drug trafficking was for financial gain, whether the
trafficking was organized and premeditated, and the background and
H criminal record of the defendant. We need to emphasize that unless the H
judge has erred in principle, the appellate court should not interfere with
a discount to sentence given by the judge on account of
I I
self-consumption of part of the drugs a defendant trafficked in.”
(emphasis supplied)
J J
20. In arriving at that conclusion, the Court of Appeal made
K K
reference to two cases, namely HKSAR v Chow Kam Lung12 and HKSAR v
L Cheuk Kin Man13. In the former case, the defendant imported dangerous L
drugs from the mainland wholly for his own use, and he was granted a 25%
M M
reduction in sentence; in the latter case, the defendant had intended to
N consume two-third of the dangerous drugs concerned and was given a 15% N
reduction.14 In all the circumstances of this case, the court is of the view
O O
the defendant has had the five packets of “ice” for the purposes of
P trafficking. Having regard to the defendant’s criminal history, the court P
cannot rule out, however, the possibility that he might consume a small
Q Q
portion of the “ice”. The court finds that a reduction in sentence of slightly
R R
in excess of 10% ought to be given.
S S
T 11
HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 T
12
HKSAR v Chow Kam Lung [2010] 4 HKLRD 253
13
U HKSAR v Cheuk Kin Man [2010] 5 HKLRD 558 U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V
-9-
A A
B B
21. The principles relevant to a section 56A(1) enhancement of
C sentence are clear. First, section 56A(1) does not stipulate the time limit C
within which the prosecution must inform the defence of their intention to
D D
make an application for such an enhancement. 15 Secondly, proof of
E knowledge on the defendant’s part of the minor’s status as such is not E
required.16 Thirdly, in imposing an enhanced sentence, the court has to
F F
consider the percentage as well as the actual extent of enhancement.17
G Fourthly, the degree of enhancement is to be determined by reference to G
the factual circumstances of the case.18
H H
22. It is noted, in the present case, that the defendant has supplied
I I
the minor with “ice” for self use, rather than for onward delivery to others.
J The incident has led to Luk’s conviction of an offence of inhaling a J
dangerous drug for which he was sentenced to probation for 18 months. In
K K
all the circumstances, the court is of the view that an enhancement of the
L defendant’s sentence by four months would be sufficient to meet the L
justice of the case.
M M
N 23. The Court of Appeal has laid down the sentencing tariff for N
O
trafficking in zero to ten grammes of “ice”, namely three to seven years’
O
19 20
imprisonment (see AG v Ching Kwok-hung , HKSAR v Capitania , and
P P
HKSAR Tam Yi-chun (No.2) 21). In the instant case, for the amount of
Q
narcotic concerned, the proper starting point should be six years and six Q
R 14
HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, at para.16 R
15
HKSAR v Chan Ka Shing [2012] 2 HKLRD 220, at para.21
16
HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017, at p.1022, para.15
S S
17
HKSAR v Chan Ka Shing [2012] 2 HKLRD 220, at p.226, para.25
18
HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017, at p.1022, para.15
T 19
AG v Ching Kwok-hung [1991] 2 HKLR 125 T
20
HKSAR v Capitania CACC28/2004
21
U HKSAR Tam Yi-chun (No.2) [2014] 4 HKC 256 U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V
- 10 -
A A
B B
months’ imprisonment. The sentence is reduced, on account of the factor
C of partial consumption of the “ice” by the defendant himself, to one of five C
years and nine months’ imprisonment.
D D
E 24. The defendant is entitled to one-third discount for his guilty E
plea, resulting therefore in a sentence of three years and ten months’
F F
imprisonment before enhancement. Nothing in the defendant’s
G background would warrant any further reduction. G
H H
25. It is ordered that the sentence be enhanced by four months
I under section 56A(1) of the Ordinance on the first limb, ie., under section I
56A(2)(a), there being no solid evidence capable of supporting a finding of
J J
persuasion, enticement or coercion having been practiced on Luk by the
K defendant; the final sentence is one of four years and two months’ K
imprisonment.
L L
M CONCLUSION M
N N
26. For the offence of which he stands convicted, the defendant is
O sentenced to a period of imprisonment of four years and two months. O
P P
Q Q
R R
( Joseph To )
S Deputy District Judge S
T T
U U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V
A A
B DCCC 1083/2015 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 1083 OF 2015
E E
-----------------
F HKSAR F
v
G G
LAI Man-lung
H H
-----------------
I I
J Before: Deputy District Judge Joseph To in Court J
Date: 29 April 2016 at 09:31 am
K K
Present: Mr Sammy HUI, Counsel on Fiat, for HKSAR/Director of
L Public Prosecutions L
Miss Anita MA, instructed by Messrs. Cheng & Wong,
M M
assigned by Director of Legal Aid
N Offences: [1] Trafficking in a dangerous drug （販運危險藥物） N
O O
P P
------------------------------------------------------
Q REASONS FOR SENTENCE Q
------------------------------------------------------
R R
S S
T T
U U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V
-2-
A A
B B
INTRODUCTION
C C
1. On 15 April 2016, the defendant appeared before this court
D D
and pleaded guilty to the two charges preferred against him by the
E prosecution, namely, trafficking in a dangerous drug, contrary to section E
4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (the first
F F
charge), and possession of apparatus fit and intended for the inhalation of a
G dangerous drug, contrary to section 36(1) and (2) of the Ordinance (the G
second charge).
H H
I 2. The court raised an issue with respect to the validity of the I
second charge. Neither the prosecution nor the defence appeared to have
J J
addressed their mind to the time limit 1 within which the second charge –
K which contained a summary offence2 – must be laid. Mr Sammy Hui, K
prosecuting on fiat, sought instructions from the Department of Justice and
L L
confirmed that when the defendant was prosecuted with the offence of
M possession of apparatus fit and intended for the inhalation of a dangerous M
drug in the second charge, the charge had already become time-barred. In
N N
consequence, the defendant’s guilty plea to the second charge was vacated,
O and the charge was formally withdrawn. In the end, the defendant was O
convicted, on his guilty plea, of the sole remaining charge of trafficking in
P P
a dangerous drug.
Q Q
FACTS
R R
S S
1
Section 26 of the Magistrates Ordinance, Cap 227
T T
2
Section 36(2) of the Dangerous Drugs Ordinance, Cap 134, provides: “Any person who contravenes
any of the provisions of subsection (1) shall be guilty of an offence and shall be liable on conviction to
U a fine of $10,000 and, subjection section 54A, to imprisonment for 3 years.” U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V
-3-
A A
B B
3. On the afternoon of 29 August 2014, a team of police officers
C demanded to enter the defendant’s residence at Room 1709, Yiu Hing C
House, Tin Yiu (I) Estate, Tin Shui Wai, New Territories, a public unit
D D
which was about to be returned to the Housing Authority. Several minutes
E later, the defendant answered the door. Inside the unit, the police found, E
apart from the defendant himself, two youngsters. As the defendant
F F
appeared to be nervous, the police conducted a search on him and found in
G his shoulder bag a total of five plastic bags containing what was G
subsequently found to be 9.63 grammes of a crystalline solid containing
H H
9.49 grammes of methamphetamine hydrochloride, commonly known as
I “ice”. The defendant was arrested for the offence of possession of a I
dangerous drug; under caution, he said the two youngsters had taken the
J J
five packets of “ice” to the unit to be consumed there.
K K
4. The police investigated into one of the two youngsters,
L L
namely Luk Wing-yin (“Luk”), who was then 17 years old. Under caution,
M he told the police that the defendant had taken the five packets of M
dangerous drugs to the premises, and that Luk himself had consumed some
N N
dangerous drugs there out of curiosity. The defendant was further arrested
O for trafficking in a dangerous drug; upon reminded caution, he said he had O
consumed “ice” for fun and that he had thrown the “ice” flask onto the
P P
street.
Q Q
5. In a subsequent cautioned interview, the defendant admitted
R R
that it was he who had taken the “ice” to the unit, “ice” that he had
S purchased, for his own use, at $2,400 in Mongkok. The defendant told the S
police that he had asked Luk to come up to his place, saying he had taken
T T
U U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V
-4-
A A
B B
some “ice” to the unit, and that after his arrival in the unit, Luk consumed
C “ice” there, using the “ice” flask. C
D D
6. Luk provided the police with the following information. On
E the day in question, the defendant asked him to go to the unit to assist him E
to change house. When Luk and his friend arrived, Luk saw the defendant
F F
consume “ice”. The defendant asked Luk and his friend if they would like
G to try. At the defendant’s invitation, Luk and his friend consumed “ice” in G
the unit.
H H
I 7. The police found three fingerprint impressions on the sticky I
side of the adhesive tapes of two of the five packets of “ice” concerned.
J J
The fingerprint impressions matched those of the defendant’s. The street
K value of the “ice” seized by the police in this case was $4,102. K
L L
8. Subsequent to his arrest, the defendant was granted police bail
M M
pending the conclusion of their enquiry. On 8 January 2015, he failed to
N
answer bail at Tin Shui Wai Police Station. It transpired, according to N
police investigation, that he had departed from Hong Kong to the mainland
O O
via the immigration control point at Lok Ma Chau. The defendant did not
P
return to Hong Kong until 23 November 2015, whereupon he was P
re-arrested.
Q Q
R 9. Arising out of the incident in the unit, Luk was charged to R
appear before a magistrate to answer a charge of inhaling a dangerous drug.
S S
He was convicted as charged on his own plea and was, on 14 April 2015,
T sentenced to probation for 18 months. T
U U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V
-5-
A A
B B
10. The prosecution have by their letter dated 7 January 2016
C given notice of their intention to make an application for enhancement of C
sentence pursuant to section 56A(1) of the Ordinance, on the basis that the
D D
offence committed by the defendant is a specified offence 3 and that it
E involves “the procuring, supplying or trafficking by whatever means of a E
dangerous drug for or to a minor for possession or otherwise by a person”4
F F
and “a person intentionally or unintentionally employing, hiring, using,
G persuading, enticing or coercing a minor in the commission of a specified G
offence.”5 Pursuant to the Ordinance, specified offences include, among
H H
others, the offences of trafficking in a dangerous drug6 and of inhaling a
I dangerous drug7. I
J J
11. The defence raises no objection to the prosecution’s
K application for enhancement under section 56A(1) of the Ordinance. K
L L
MITIGATION
M M
12. The defendant was born in Hong Kong in October 1981 and is
N N
now 35 years old. He has received education up to Form One level and has
O worked as a transportation worker. He has been unemployed since 2014 O
and has been living on Comprehensive Social Security Allowance. He is
P P
single but has two daughters aged nine and ten. He lives with his mother
Q and his two daughters. He has six criminal conviction records involving Q
six charges, none of which are similar to the subject offence. His criminal
R R
S S
3
Section 56A(8) of the Dangerous Drugs Ordinance, Cap 134
4
Section 56A(2)(a) of the Dangerous Drugs Ordinance, Cap 134
T 5
Section 56A(2)(d) of the Dangerous Drugs Ordinance, Cap 134 T
6
Section 4 of the Dangerous Drugs Ordinance, Cap 134
7
U Section 8 of the Dangerous Drugs Ordinance, Cap 134 U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V
-6-
A A
B B
records show that he has been sentenced to detention at a drug addiction
C treatment centre on two occasions. C
D D
13. In her plea in mitigation, Miss Anita Ma appearing for the
E defendant stresses, first of all, that at the time of the offence committed by E
the defendant, Luk was only two months short of his eighteenth birthday.
F F
While not disputing the court’s jurisdiction to enhance the sentence under
G section 56A(1) of the Ordinance, it is Miss Ma’s submission that Luk’s G
status as a minor at that time might not have been obvious to the defendant.
H H
I 14. By way of further background information, Miss Ma submits I
that the defendant has come from an exceedingly humble family, his
J J
mother having been repeatedly abandoned by the biological fathers of her
K children among whom the defendant is the eldest. The defendant’s mother, K
who is now 49 years old, suffers from poor health and is in need of regular
L L
medical attention. The defendant himself has two daughters, one of whom
M is retarded and is studying in a special school, while the other is normal. M
The defendant has started to take dangerous drugs in around the year 2000
N N
and has since then been sent to the DATC twice. The treatment provided
O by the centre did not, says Miss Ma, appear to be effective in the O
defendant’s case; the defendant ended up heavily addicted to dangerous
P P
drugs. Since 2008, the defendant has been using the social security
Q payment to purchase “ice” for his own use. Q
R R
15. As to the circumstances of the commission of the subject
S S
offence, Miss Ma submits that the defendant invited Luk to help to restore
T the unit to a state fit for delivery to the Housing Authority. Knowing that T
U U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V
-7-
A A
B B
Luk himself took “ice”, the defendant shared the “ice” with him and has
C derived no monetary gains from Luk. C
D D
16. Miss Ma refers the court to the following three cases
E concerning enhancement of sentence under section 56A(1) of the E
Ordinance: HKSAR v Wong Kwok-hung8, HKSAR v Chan Ka Shing9, and
F F
HKSAR v Ng Hon Keung10. Several mitigation letters are also handed up to
G the court. In summary, Miss Ma submits that the defendant has come from G
a very humble family and is a simple-minded person; she asks the court to
H H
pass a lenient sentence on him.
I I
CONSIDERATION
J J
K 17. Arising from the fingerprint evidence, it is clear that the K
defendant must have packed the “ice” himself. The court finds beyond all
L L
reasonable doubt, in all the circumstances of the case, that in addition to the
M social trafficking he has committed involving Luk, the defendant must M
have intended to supply the five packets of “ice” to others for gains.
N N
O 18. Two issues are raised in this sentencing hearing. First, Miss O
Ma argues that the defendant has had the intention to consume the “ice”
P P
himself, for which he should be given a reduction in sentence. Secondly,
Q the court has to assess the extent by which the sentence should be enhanced Q
under section 56A(1) of the Ordinance, in light of all the circumstances of
R R
the case.
S S
T 8
HKSAR v Wong Kwok-hung CACC225/2002 T
9
HKSAR v Chan Ka Shing [2012] 2 HKLRD 220
10
U HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017 U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V
-8-
A A
B B
19. The Court of Appeal in HKSAR v Chow Chun Sang11 dealt
C with the issue of partial consumption being relied upon as a ground of C
mitigation, and held:
D D
“19. We are of the view that in drug trafficking cases, when all or part
E of the drugs are intended for the trafficker’s own consumption, the E
ensuing discount to sentence should, depending on circumstances, fall
somewhere between 10% and 25% of the basic starting point. In
F determining the extent of discount in a particular case, the court should F
have regard to factors including the total quantities of the drugs involved,
G proportion of the drugs intended for self-use, the nature of the drugs, G
whether the drug trafficking was for financial gain, whether the
trafficking was organized and premeditated, and the background and
H criminal record of the defendant. We need to emphasize that unless the H
judge has erred in principle, the appellate court should not interfere with
a discount to sentence given by the judge on account of
I I
self-consumption of part of the drugs a defendant trafficked in.”
(emphasis supplied)
J J
20. In arriving at that conclusion, the Court of Appeal made
K K
reference to two cases, namely HKSAR v Chow Kam Lung12 and HKSAR v
L Cheuk Kin Man13. In the former case, the defendant imported dangerous L
drugs from the mainland wholly for his own use, and he was granted a 25%
M M
reduction in sentence; in the latter case, the defendant had intended to
N consume two-third of the dangerous drugs concerned and was given a 15% N
reduction.14 In all the circumstances of this case, the court is of the view
O O
the defendant has had the five packets of “ice” for the purposes of
P trafficking. Having regard to the defendant’s criminal history, the court P
cannot rule out, however, the possibility that he might consume a small
Q Q
portion of the “ice”. The court finds that a reduction in sentence of slightly
R R
in excess of 10% ought to be given.
S S
T 11
HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 T
12
HKSAR v Chow Kam Lung [2010] 4 HKLRD 253
13
U HKSAR v Cheuk Kin Man [2010] 5 HKLRD 558 U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V
-9-
A A
B B
21. The principles relevant to a section 56A(1) enhancement of
C sentence are clear. First, section 56A(1) does not stipulate the time limit C
within which the prosecution must inform the defence of their intention to
D D
make an application for such an enhancement. 15 Secondly, proof of
E knowledge on the defendant’s part of the minor’s status as such is not E
required.16 Thirdly, in imposing an enhanced sentence, the court has to
F F
consider the percentage as well as the actual extent of enhancement.17
G Fourthly, the degree of enhancement is to be determined by reference to G
the factual circumstances of the case.18
H H
22. It is noted, in the present case, that the defendant has supplied
I I
the minor with “ice” for self use, rather than for onward delivery to others.
J The incident has led to Luk’s conviction of an offence of inhaling a J
dangerous drug for which he was sentenced to probation for 18 months. In
K K
all the circumstances, the court is of the view that an enhancement of the
L defendant’s sentence by four months would be sufficient to meet the L
justice of the case.
M M
N 23. The Court of Appeal has laid down the sentencing tariff for N
O
trafficking in zero to ten grammes of “ice”, namely three to seven years’
O
19 20
imprisonment (see AG v Ching Kwok-hung , HKSAR v Capitania , and
P P
HKSAR Tam Yi-chun (No.2) 21). In the instant case, for the amount of
Q
narcotic concerned, the proper starting point should be six years and six Q
R 14
HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, at para.16 R
15
HKSAR v Chan Ka Shing [2012] 2 HKLRD 220, at para.21
16
HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017, at p.1022, para.15
S S
17
HKSAR v Chan Ka Shing [2012] 2 HKLRD 220, at p.226, para.25
18
HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017, at p.1022, para.15
T 19
AG v Ching Kwok-hung [1991] 2 HKLR 125 T
20
HKSAR v Capitania CACC28/2004
21
U HKSAR Tam Yi-chun (No.2) [2014] 4 HKC 256 U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V
- 10 -
A A
B B
months’ imprisonment. The sentence is reduced, on account of the factor
C of partial consumption of the “ice” by the defendant himself, to one of five C
years and nine months’ imprisonment.
D D
E 24. The defendant is entitled to one-third discount for his guilty E
plea, resulting therefore in a sentence of three years and ten months’
F F
imprisonment before enhancement. Nothing in the defendant’s
G background would warrant any further reduction. G
H H
25. It is ordered that the sentence be enhanced by four months
I under section 56A(1) of the Ordinance on the first limb, ie., under section I
56A(2)(a), there being no solid evidence capable of supporting a finding of
J J
persuasion, enticement or coercion having been practiced on Luk by the
K defendant; the final sentence is one of four years and two months’ K
imprisonment.
L L
M CONCLUSION M
N N
26. For the offence of which he stands convicted, the defendant is
O sentenced to a period of imprisonment of four years and two months. O
P P
Q Q
R R
( Joseph To )
S Deputy District Judge S
T T
U U
CRT20/29.4.2016/ DCCC 1083/2015/Sentence
V V