HKSAR v. Lee Wai Man

HCCC 19/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 19 OF 2015

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

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COURT: You have pleaded guilty to trafficking in dangerous drugs, contrary to section (4)(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and you stand convicted upon your own plea.

You have pleaded guilty to trafficking in 24.4 grammes of methamphetamine hydrochloride, or “Ice” as it’s commonly called.

The facts of the case have been read out by the prosecution and you have agreed them this morning. But, in essence, they are that in the early hours of the morning on 2 September 2014 you were intercepted on the ground floor of Oi Tai House, Fu Tai Estate, Tuen Mun. You had a white Marlboro cigarette packet in the left-front pocket of your jeans, which had one transparent resealable bag within it, containing a clear white crystalline solid we now know to be “Ice”.

On arrest and under caution you said, “The Ice is for my consumption only”. So there is no question that you knew exactly what it was that you were carrying.

In interview you maintained that story. You admitted to being an “Ice” user with a daily habit of 0.7 grammes. You said that you had just picked up the “Ice” for which you paid $2,500. You had been directed to pick them up by a friend and it was that friend who told you to hide the drugs in the packet.

The electronic scale was found in your home. That was, you said, not yours either and the small resealable plastic bags the police found were for the storage of screws and food.

By reason of your plea of guilty today, you accept that none of what you said under caution or in interview was true, and that you had the drugs in your possession to supply them to another.

Today for the first time you suggest that nevertheless, as an addict, you would have consumed some part of those drugs for yourself.

The prosecution do not accept this, although they do accept that your previous record indicates that you are indeed an addict as was stated by you in your antecedent statement.

You do not know how much you would have consumed, but have suggested through counsel, up to 7 grammes would have been consumed by you in the following two weeks.

I do not accept that you would have consumed what amounts to almost 30 per cent of the drugs in question without evidence in support. This was a bare allegation and the only evidence I have before me is that you have been found guilty of possession of dangerous drugs on six previous occasions, the last of which was 8 years ago in 2007.

In that year, and in 2010 when you were sentenced for trafficking in dangerous drugs, you say that the drug involved was “Ice”, the same as today. I do not know if you also asked for a discount for self-consumption on that occasion.

Mr Hui, valiantly on your behalf, has submitted a number of authorities. Amongst them he has referred to HKSAR v Capitania Edwin CACC 28/2004. In that case, the court referred to the judgment of Stuart-Moore VP in HKSAR v Wong Suet Hau & Anor at pages 79A-80D in which the learned judge said at subparagraph (2):

“Having regard to the dangers of the abuse of this avenue of mitigation, the judge should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the contention.”

He went on to suggest the factors which should be considered by a sentencing court when asked to give a discount for personal consumption.

I have considered all of those factors. Given the fact that the defendant had no regular job, even though he says he was a decoration worker, and was likely to have been in the business of trafficking in dangerous drugs to fund his habit, I find it highly unlikely that he would have consumed anything but a very small amount of the dangerous drugs found upon him, if any at all, in the circumstances of this arrest.

He was, on the evidence, away from home in the very early hours of the morning at another residential address at which he had no apparent connection, behaving suspiciously and was, the police believe, in the process of trafficking. He had no paraphenalia at home, save for the scales and plastic bags and the drugs found in his possession were in one single packet.

It is therefore more than likely that he would have trafficked the whole amount. I do not therefore accept that any was for his own consumption and I was prepared to hold a Newton hearing if he wished to persuade me otherwise, but he has chosen not to avail himself of this opportunity.

The total value of the drugs you were trafficking in Mr Lee was $9,949 in September 2014.

You are now 37 years of age. You have an extensive criminal record which commenced when you were only 12 years of age, and I note that you have previously been in court for possession of dangerous drugs and, latterly, trafficking in dangerous drugs in June 2010 when you received a sentence of imprisonment of 4 years in the District Court. I note that it was in 22 June 2012 that you were ultimately released for that offence.

I have taken into account all that has been said on your behalf by Mr Hui, including your family background, the offending history I have mentioned and I have not enhanced the sentence I am about to impose as a result of that offending. But, Mr Lee, you should be aware that you are at risk of receiving an enhanced sentence in future if you continue to commit offences as you have been doing.

The relevant sentencing guideline for the offence of trafficking in “Ice” in September 2014 is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For trafficking in between 10 grammes and 70 grammes of “Ice”, the sentencing range is between 7 and 11 years. For trafficking in 24.4 grammes of “Ice”, the starting point is therefore 8 years.

The trafficking of dangerous drugs is a serious offence. Deterrence is therefore an overwhelming consideration, and whilst I have heard your personal circumstances, in the face of such a serious offence there is nothing which has been said on your behalf which would warrant a more lenient course than would otherwise be the case and so the sentence that I pass on you is one of 5 years and 4 months’ imprisonment, having given you the full one-third discount.

(Proceedings from 11.42 am not required)

Court adjourns - 11.43 am

15 September 2015

16 September2015

Court resumes - 10.01 am

Accused present. Appearances as before.

(Proceedings to 10.14 am not required)

COURT: The sentence of 5 years 4 months: 4 days of which is to run concurrently with the period of 7 days’ imprisonment imposed for non-payment of fine under Serial 16 of the CRO.

(Proceedings from 10.15 am not required)

Court rises - 10.16 am

16 September 2015