HKSAR v. HO CHIN KEE AND ANOTHER

HCCC 231/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 231 OF 2013

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HKSAR
v
Ho Chin-kee (A1)
Lee Yick-kwan (A2)

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Before: Hon M Poon J

Date: 20 January 2014 at 10.26 am

Present: Mr John Patrick McNamara, on fiat, for HKSAR
Mr Kenneth Wong Yiu-fai, instructed by Wongs, assigned by DLA, for the 1st accused
Mr Ching Wan-fung, instructed by Hastings & Co, assigned by DLA, for the 2nd accused

Offence: (1) Trafficking in a dangerous drug (販運危險藥物)
(2) Tenant permitting premises to be used for the unlawful storage of a dangerous drug (against 1st accused only) (alternative to1st count) (租客准許處所作非法儲存危險藥物之用)
(3) Trafficking in a dangerous drug (against 1st accused only) (販運危險藥物)

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

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COURT: D1 pleaded guilty to one charge of tenant permitting premises to be used for the unlawful storage of dangerous drugs and onecharge of trafficking in a dangerous drug, while D2 pleaded guilty to one single charge of trafficking in a dangerous drug.

On the evening of the day in question, police raided the flat and found D1 and D2 with others inside. The “Ice” that is the subjectmatter of the 1st charge was found in plastic bags on a shelf in the bedroom and, next to that, was a metal box containing threebags of heroin, the subject matter of the 3rd charge.

D1 was in possession of a set of keys to the premises and a tenancy agreement in his name.

Upon analysis, the drugs were found to be 11.53 grammes of a crystalline solid containing 10.95 grammes of methamphetamine hydrochlorideand 10.59 grammes of a mixture containing 6.13 grammes of heroin hydrochloride.

D1 said, under caution, that only the heroin belonged to him whilst D2 admitted that the “Ice” belonged to him. Both said that theyhad their own drugs for their own consumption.

The street value of the heroin at that time and the “Ice” was $9,300 and $8,200 respectively.

D1 is aged 54, divorced, with two sons who are now in their 20s and he had remarried in 2004. He has three previous convictions; onlythe last one in 2010 concerns possession of dangerous drugs for which he was sentenced to 8 months’ imprisonment.

Counsel had referred me to the Government Chemist Certificate showing that there were three separate parcels of drugs and it was submittedhalf of those drugs were for his own consumption whilst the rest was for trafficking. It was also submitted that D1’s knowledgeof the presence of the drugs brought into the flat by D2 was only for some 15 minutes which was supported by what the 2nd defendantsaid under caution. Counsel for the 1st defendant urges me to take a lower starting point in relation to the two charges.

D2 is now aged 53, married, with four children. Counsel told me that, prior to the arrest, he ran a grocery store with a stable monthlyincome of around $15,000. He has two previous convictions back in the 1980s totally unrelated to drugs. He now admits all the drugswere for trafficking.

I shall first deal with D2. For trafficking in 10.95 grammes of “Ice”, that falls within the 10 to 70 grammes, that is, the 7 to 10years’ bracket. I adopt a starting point of 7 years’ imprisonment.

He is entitled to the full one-third discount for his plea and he is sentenced to 4 years and 8 months.

For D1, in relation to the 3rd charge, that is trafficking in 6.13 grammes of heroin, that falls within the up to 10 grammes, thatis 2 to 5 years’ bracket. I adopt a starting point of 4 years’ imprisonment.

I accept that some part of the drugs were for his own consumption because the drugs were found in the flat, on various tenancy, andhe has one previous conviction of possession of dangerous drugs. I knock off 6 months for that. From that, I give him one-third discountfor his plea of guilty. He is sentenced to 2 years 4 months’ imprisonment.

I now deal with the rest of the charge against D1 in respect of the tenant permitting charge. According to the case of Lee Kwok Keung, CACC 595/1996, this offence is one which varies greatly in its gravity and every case turns on its own facts, but the extent ofknowledge and involvement together with the amount of financial benefit are important considerations.

I have taken into account his relatively short duration of knowledge and there is no evidence of any financial benefit. I am of theview that 3½ years’ imprisonment is an appropriate sentence in the circumstances of the present case, after trial, and he is entitledto the full one-third discount for his guilty plea. He is sentenced to 2 years 4 months’ imprisonment for that charge.

I have considered the totality principle. I order 1 year and 2 months to run consecutively, so D1 goes to prison for 3½ years.