A A
B B
DCCC 169/2018
C [2019] HKDC 285 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 169 OF 2018
F F
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G G
HKSAR
H
v H
LO KAI YIN
I I
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J J
Before: His Honour Judge Douglas Yau
K K
Date: 26 February 2019
L Present: Miss Gladys Chan, Senior Public Prosecutor (Ag), for L
HKSAR
M M
Mr Kevin Tang Tsz Kai, instructed by Pansy Leung Tang &
N Chua, assigned by the Director of Legal Aid, for the N
defendant
O O
Offence: [1] & [3] Trafficking in a dangerous drug (販運危險藥物)
P [2] Possession of offensive weapons (管有攻擊性武器) P
Q
[4] Possession of apparatus fit and intended for the inhalation Q
of a dangerous drug (管有適合於及擬用作吸服危險藥物的
R R
器具)
S S
T T
U U
V V
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A A
B B
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C REASONS FOR SENTENCE C
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D D
E 1. The defendant faced the following 4 Charges: Charge 1 for E
trafficking in dangerous drugs, Charge 2 for possession of offensive
F F
weapons1, Charge 3 for trafficking in dangerous drugs and Charge 4 for
G possession of apparatus fit and intended for the inhalation of a dangerous G
drug.
H H
I 2. He was convicted upon his pleas of guilty and admission to I
the summary of facts of Charges 1, 2 and 3. Charge 4 was ordered to be
J J
kept on file, not to be proceeded with against the defendant without the
K leave of court. K
L L
Summary of facts
M M
Charge 1: Trafficking in dangerous drugs
N N
O 3. At around 10:35 p.m. on 3 August 2017, the defendant was O
intercepted by Police officer on Yick Yuen Road in Tuen Mun. A search
P P
was conducted on the defendant and one transparent re-sealable plastic bag
Q (“Bag A”) containing some crack cocaine was found from his right front Q
trousers pocket. Under caution, the defendant claimed the drugs to be for
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his self-consumption.
S S
T T
1
Contrary to section 17 of the Summary Offences Ordinance, Cap 228.
U U
V V
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A A
B B
4. Forensic examination later confirmed that Bag A contained
C 6.38g of a solid containing 5.52g of cocaine. C
D D
Charge 2: Possession of offensive weapons
E E
5. At around 10:58 p.m., police officers conducted a search of
F F
the defendant’s residence at Yick Yuen Tsuen upon execution of a search
G warrant. G
H H
6. A machete with a 30 cm long blade with holes, a kukri knife
I with a 25 cm long blade and 6 iron pipes wrapped with white cloths at the I
handle area (“the seized weapons”) were found at the adjoining metal hut
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on the ground floor. Under caution, the defendant claimed that his brothers
K placed the items there. K
L L
Charge 3: Trafficking in dangerous drugs
M M
7. From a room labelled “Health Room” on the first floor, one
N N
transparent re-sealable plastic bag containing another transparent re-
O sealable plastic bag containing crack cocaine (“Bag B”), and an electronic O
scale were found.
P P
Q 8. Government Chemist later confirmed Bag B contained 18.2g Q
of a solid containing 15.6g of cocaine.
R R
S 9. The defendant was arrested for trafficking in dangerous drugs. S
Under caution, he claimed that the drugs were for his self-consumption.
T T
U U
V V
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A A
B B
10. The total quantity of cocaine seized is 24.58g of solid
C containing 21.12g of cocaine, with an estimated street price of $32,126.06 C
at the material time.
D D
E 11. In the subsequent video recorded interview, the defendant E
claimed that he bought the cocaine in bags A and B from a friend for self-
F F
consumption. He would use 5 to 6 grams of cocaine per day, at 1 gram per
G dose. The electronic scale was for weighing the drugs he bought to make G
sure he was not cheated by the seller.
H H
I 12. The seized weapons were left by his friend about one year ago. I
He and his friend wrapped the iron pipes with white cloths. They were
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intended to be used to resist attacks.
K K
Previous convictions
L L
M 13. The defendant has one conviction for burglary in 2008 when M
he was sentenced to the Detention Centre, and convictions for possession
N N
of dangerous drugs and possession of equipment fit and intended for
O smoking a dangerous drug in August 2013, when he was sentenced to O
detention at the Drug Addiction Treatment Centre.
P P
Q Mitigation Q
R R
14. The defendant is 31 years old, divorced. He was educated up
S to form 5 level and was a transportation worker at the time of arrest. He S
was living with his girlfriend at the premises in question. His daughter,
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when the defendant is working, would stay with the defendant’s mother.
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V V
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A A
B B
The defendant would contribute money for their upkeeping and living
C expenses. C
D D
15. It was put forward in mitigation that up to around 20% of the
E seized drugs were for the defendant’s self-consumption. E
F F
16. Based on the defendant’s previous drug related record and the
G contents of his video recorded interview, as well as the fact that the quantity G
of drugs found the defendant’s person in charge 1 supported what the
H H
defendant said in the video recorded interview about how some 7g of the
I drugs were for his self-consumption, I will accept that around 20% of the I
seized drugs were for the defendant’s self-consumption and that it can be
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regarded as a significant proportion under the circumstances.
K K
Maximum sentence
L L
M 17. The maximum sentence for trafficking in dangerous drugs is M
that of a fine of $5 million and imprisonment for life.
N N
O 18. The maximum sentence for possession of offensive weapons O
contrary to section 17 of the Summary Offences Ordinance is that of a fine
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of $5,000 or to imprisonment for 2 years.
Q Q
Sentencing tariffs
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S 19. It was held in Attorney General v Pedro Nel Rojas [1994] 1 S
HKC 342 that the sentencing guidelines laid down in R v Lau Tak-ming
T T
U U
V V
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A A
B B
[1990] 2 HKLR 370 for trafficking in the drug of heroine is applicable to
C cocaine as well. C
D D
20. The band of tariff for trafficking 10g to 50g of cocaine is that
E of 5 to 8 years’ imprisonment. E
F F
21. An arithmetical application of the said tariff sentence to the
G total of 21.12g of cocaine would lead to a starting point of 69 months’ G
imprisonment. This is the starting point I adopt for charge 1 and 3. The
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sentences are to be served wholly concurrently2.
I I
Self-consumption
J J
K 22. It was submitted through counsel that up to 20% of the seized K
drugs were for the defendant’s self-consumption.
L L
M 23. Mr Tang relies on the case of HKSAR v Tsoi Man-chun, M
CACC 414/2015 for the proposition that the defendant should be entitled
N N
to some discount based on some of the drugs being for his self-use.
O O
24. In that case, the Court of Appeal reiterated that in order for a
P P
discount to be given on the basis of self-consumption, the amount involved
Q must be “all or a significant proportion of the drugs”. There was no Q
specific finding as to the quantity of drugs earmarked for self-consumption
R R
in that case. There was however circumstantial evidence to suggest that a
S large proportion was meant was self-consumption. It was found that there S
should be a 10% discount on that basis.
T T
2
See HKSAR v Wan Lau Mei, CACC 389/2013.
U U
V V
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A A
B B
C 25. In the present case, since I accept that up to around 20% of C
the drugs were for the defendant’s self-consumption, I will grant the
D D
defendant a discount in sentence of just slightly more than 10%.
E E
26. The resulting sentence is (69-7=) 62 months’ imprisonment.
F F
Upon granting him the full one-third discount, he is sentenced on charges
G 1 and 3 to a concurrent sentence of 41 months’ imprisonment. G
H H
Charge 2
I I
27. In relation to charge 2, given the not insignificant number of
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weapons and the nature of the weapons, I find that an appropriate starting
K point is that of 12 months’ imprisonment. This sentence is discounted to 8 K
months’ imprisonment for the defendant’s guilty plea.
L L
M Totality M
N N
28. The trafficking in dangerous drugs offences and the
O possession of offensive weapons offences are separate and distinct O
offences. However, bearing in mind the principle of totality, I order that 6
P P
months of the sentence in charge 2 be served consecutively to the sentences
Q in charge 1 and 3, the balance concurrently. Q
R R
S S
T T
U U
V V
-8-
A A
B B
29. The defendant is, therefore, sentenced to a total of 47 months’
C imprisonment. C
D D
E E
F F
( Douglas TH Yau )
District Judge
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