HKSAR v. Lee Wang Kam

HCCC 172/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 172 OF 2016

_______________

_______________

_____________________

REASONS FOR SENTENCE

_____________________

1.On 15 April 2016, the defendant was committed to the Court of First Instance for trial for the offence of trafficking in a dangerous drug on 23 September 2015, consisting of 14.5 g of a crystalline solid containing 14.3 g of methamphetamine hydrochloride, also known as Ice. The retail value of the drugs at the time of the offence was $4,698.

2.On 23 May 2016, the defendant’s case was listed for a pre-trial review on 12 June 2017 and a five-day trial on 11 August 2017. By letter dated 6 June 2017, counsel for the defendant advised the Court that the defendant would plead guilty to the offence he faced.  The case was relisted for 27 June 2017 but was adjourned to today’s date for plea and sentence in order for further inquiries to be made in relation to the defendant’s case.

3.The defendant has entered a plea of guilty to the trafficking offence.  The brief facts giving rise to the offence to which the defendant has admitted are as follows.  At about 10:30 pm on 23 September 2015, at Ho Tin Light Rail Station, as a result of the defendant’s suspicious behaviour, he was stopped by police officers.  He was carrying a shoulder bag at the time which was searched.  Found inside the bag were 11 smaller transparent plastic bags each containing a quantity of Ice.  After he was arrested and cautioned for trafficking in drugs, the defendant said “Ah sir, I was only delivering the pork for someone from Yuen Long to Tuen Mun for 1000 and 500 dollars.” 

4.In a subsequent video recorded interview, the defendant confirmed his previous statement that he was delivering the drugs for someone and that the term “pork” was a reference to Ice. 

5.The defendant by his plea of guilty admits that he was in possession of the drugs for the purposes of unlawful trafficking.

6.At the time of the offence, the defendant was 25 years old.  He lived with his mother and wife in a flat in Tuen Mun and worked as a vegetable wholesaler.  He has a number of prior convictions some of which are drug-related.  In October 2007, he was put on probation for 18 months for possession of drugs and possession of equipment for consuming drugs.  In November 2007, he was given a detention centre order for two offences of assault occasioning actual bodily harm.  In June 2010, he was again put on probation for 18 months for possession of drugs.  In July 2010, he was sentenced to 3 months’ imprisonment for passing counterfeit currency.  In May 2016, he was sentenced to 3 months’ imprisonment for assaulting a police officer.

7.In mitigation, it was submitted that the defendant has had an addiction to Ice since he was 14 years old and that explains his drug related offences.  It was put that some of the drugs were for self-consumption but this submission was withdrawn when the Court asked that it be substantiated.  Mere assertions from the bar table that some of the drugs were for the defendant’s self-consumption, unless agreed or not in dispute or contentious, will generally not suffice.  Such an issue has to be proven to the sentencing court’s satisfaction on credible and reliable information or material.  See HKSAR v Wong Suet Hau and Anor [2002] 1 HKLRD 69 at paragraph 34, and HKSAR v Tsoi Man Chun,CACC 414/2015, 27 March 2017, unreported. 

8.There was no meaningful mitigation that was put forward on behalf of the defendant other than his plea of guilty. 

9.On 9 June 2014, the Court of Appeal in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 revised the sentencing tariffs for a person convicted of trafficking of Ice as contained in AG v Ching Kwong Hung [1991] 2 HKLR 125.  The narcotic content of Ice of 14.3 g falls within the band of 10 to 70 g where the sentence after trial ranges from 7 to 11 years’ imprisonment.  For this quantity of drugs, a starting point of 7 years and 3 months’ imprisonment is adopted. 

10.On 2 September 2016, the Court of Appeal revised the practice of affording discounts of sentence for guilty pleas in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.  It was noted by the Court of Appeal that the revised practice would not apply in respect of cases in the Court of First Instance where trial dates had already been fixed.  This case was fixed for trial on 23 May 2016 and therefore the previous practice applies.  Under the previous practice, a defendant would usually be entitled to the normal one third discount when the plea of guilty was entered on the first day of trial: HKSAR v Lo Chi Yip and Another [2000] 3 HKLRD 270, 276C-277J; and HKSAR v Ting Chiu and Another [2003] 3 HKLRD 378, [17], [21] to [23].  Accordingly, the defendant will be given the normal one third discount for his plea of guilty. 

11.The starting point of 7 years and 3 months’ imprisonment will therefore be reduced by one third for the defendant’s guilty plea to 4 years and 10 months’ imprisonment.

Mr Richard Turnbull, counsel on fiat, for HKSAR

Mr Dick Lee Kwok Fu, instructed by Cheung, Chan & Chung, assigned by Director of Legal Aid, for the defendant