HKSAR v. Lam Mei Chi

HCCC 61/2015 & HCCC 53/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 61 OF 2015 AND 53 OF 2017

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

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COURT:

The defendant was charged with one count of trafficking in a dangerous drug in each of the two cases. She pleaded guilty before me to all the offences. With consent of both parties, sentencing of the two cases are dealt with together. In sentencing, I have considered the whole circumstances of the two cases, having particular regard to the type and quantity of the dangerous drug involved, background of the defendant and mitigation put forward on her behalf.

These are two stop and search cases. The facts which the defendant admitted may be summarised as follows. In HCCC 61/2015, the defendant was stopped by patrolling police officers outside a public housing block in which the defendant was living. From the shoulder bag the defendant was carrying, a piece of white tissue containing a resealable transparent plastic bag was found. Inside the plastic bag was 14.60 grammes of a crystalline solid containing 14.10 grammes of methamphetamine hydrochloride.

Upon arrest and caution, the defendant said she was out of job and making partial livelihood by selling dangerous drugs on occasions. $8,260 in cash was found inside the purse of the defendant. In a subsequent search of her home, an electronic scale, five resealable plastic bags were found. The defendant said the scale was for weighing of dangerous drug and the bags were for storing of drugs for sale.

In a subsequent interview, the defendant admitted she had bought the drugs a day before. She had not sold the drug to others but would sell some to friends when she was in need of money. The scale was to weigh dangerous drugs for her own consumption.

In the other case, HCCC 53/2017, the defendant was again stopped by police officers on a street, this time after a brief struggle. During that time, the defendant threw a resealable plastic bag onto the ground. It contained 25.50 grammes of a crystalline solid containing 25 grammes of methamphetamine hydrochloride. The defendant said she bought it for her own consumption. At a search of the place where the defendant lived, no drug-related items were found.

I was told that the defendant is 51 years of age. She is married. She was educated up to Primary 5. She had worked in a factory and has been a housewife after marriage. I was also told that before the first case was committed, she had also been selling second-hand mobile phones but the income yielded was small and unstable.

The defendant had, on nine previous occasions, been convicted. Her first conviction was for possession of dangerous drug. In 1990, for this offence, she was sentenced to DATC. Thereafter, on three occasions, she had been convicted of the offence of trafficking in dangerous drugs. In 1999, for this offence, she was sentenced to 16 months’ imprisonment. In 2006, she was sentenced to DATC. In 2011, she was sentenced 2 years and 4 months’ imprisonment. The other offences she has committed included possession of a Part I poison, soliciting for an immoral purpose, theft and fighting in a public place.

In mitigation, learned defence counsel, Mr Ho, stressed that the defendant had pleaded guilty. He also asked the court to take into account the assertion of the defendant that a small amount of dangerous drug in her possession was intended for her own consumption. Mr Ho also informed the court that the husband of the defendant is aged and has recently undergone a colon surgery. The son of the defendant is only studying Form 3.

In these two cases, the drug which the defendant had trafficked in was ‘Ice’, methamphetamine hydrochloride. The tariff as set out in HKSAR v Tam Yi Chun, CACC 524/2011, is applicable. In that case, the Court of Appeal held that if the narcotic content is between 10 to 70 grammes, the sentence to be considered is 7 to 11 years’ imprisonment. In all the circumstances, I see no reason to depart from the tariff.

Besides, there are aggravating features in both cases. In HCCC 61/2015, I have to take into account the three previous convictions for the same offence. In HCCC 53/2017, the same aggravating feature exists. In addition, the defendant committed this case when she was on bail for the other case.

Quantity of the dangerous drug involved is the primary factor to be taken into consideration. Taking solely the quantity into account, the following starting points are appropriate: HCCC 61/2015, 7 years and 3 months; HCCC 53/2017, 8 years. I have to take into account the aggravating features as mentioned above. In my judgment, it is appropriate to adjust the starting points as follows: HCCC 61/2015, 7½ years; HCCC 53/2017, 8½ years.

The defendant claimed that some of the dangerous drug seized in both cases were intended for her own consumption. In this connection, I have regard to HKSAR v Wong Suet Hau [2002] 2 HKLRD 1121 and the defendant’s previous record.

In both cases, what the defendant said upon arrest was not inconsistent with the present assertion. Indeed, in the second case, what she asserted after arrest was that the drug was for her own consumption. In the first case, the defendant was stopped right outside the block she was living. For the second case, the defendant was stopped in Mong Kok while she was living in Wong Tai Sin and no drug-related paraphernalia had been found at her home. The defendant claimed she had just bought the drug at Mong Kok. I note also the positive result of the urine test upon her custody for the first case and the negative result of the test conducted at the time of custody for the second case.

In relation to the second case, Mr Ho accepted that the negative result indicates that there had been no consumption of drug shortly prior to the arrest. But he invited the court to accept the asserted intention of giving a small amount of dangerous drug for own consumption, given the long addiction record of the defendant. I have also had regard to the matters raised in HKSAR v Tang Xiu Yun [2015] 5 HKLRD 872, a case brought to my attention by Mr Y M Liu, the learned counsel for the prosecution.

In all the circumstances, I am prepared to accept that some dangerous drug would be intended for own consumption by the defendant. However, the quantity intended for this purpose would be small and, in any case, my assessment is that the latent risk was very high. Moreover, I have to take into account that even for the offence of possession of dangerous drug, a sentence of custodial nature would be imposed.

Having taking into account the above factors and having regard to the case of HKSAR v Tam Ling Yuen, CACC 159/2015, brought to my attention by Mr Ho, and the more recent Court of Appeal decision in HKSAR v Yeung Shek Yung, CACC 314/2016, I adopt the following ultimate starting points: HCCC 61/2015, 7 years and 3 months; HCCC 53/2017, 8 years and 3 months.

The defendant pleaded guilty in both cases. For HCCC 53/2017, there is nothing which causes me not to think that the defendant is entitled to a one-third discount. However, for the first case, HCCC 61/2015, there were circumstances which call for consideration. The circumstances are neatly set out in a chronology which prosecuting counsel, Mr Liu, helpfully prepared. There is no dispute on the accuracy of the chronology. It concerns the question of timely plea.

The more significant events were these. The defendant, all along legally represented, initially indicated a not guilty plea and therefore the case was set down for trial in January 2016. In December 2015, the defence informed both the court and the prosecution that a guilty plea would be tendered on the first day of the trial. On that day, however, the defendant, without any prior notice, pleaded not guilty. Her counsel and solicitors applied for discharge and the applications were granted. The case has to be re-fixed for trial as the original hearing dates had been vacated. There was some delay since then but as it related to the arrest of the two important prosecution witnesses, I do not think the defendant should be held accountable for these delays.

As regards to the change of stance by the defendant, Mr Ho informed the court that it was a result of argument and misunderstanding between the defendant and the counsel then representing her. What I have to consider is whether the defendant is still entitled to a one-third discount since she had at one time failed to honour her indication of guilty plea. The Court of Appeal in the recent cases of HKSAR v Ngo Van Nam, CACC 418/2014, and HKSAR v Chan Cheuk Hong, CACC 5/2016, stressed that a defendant is entitled to a one-third discount only when he tenders a timely guilty plea.

In Ngo Van Nam, the Court of Appeal held that the extent of discount the defendant pleading guilty is entitled to depends on at what stage he enters the guilty plea. For High Court cases, a one-third discount is to be afforded to the defendant who pleads guilty at the stage of committal and not afterwards. This approach is to be adopted only for cases which arise after the Court of Appeal decision. The present case arose before the decision of Ngo Van Nam. However, we are not concerned with the new sentencing approach.

In the present case, what we are concerned with is whether there was a timely plea so that a defendant is entitled to a one-third discount. In this regard, the recent Court of Appeal decisions do not lay down new principle but only highlighted what has always been the underlying thought of the discount given when there is a guilty plea. In HKSAR v Lo Kam Fai [2016] 2 HKLRD 308, the Court of Appeal stated that it has been long established in this jurisdiction that a full discount of one-third from that taken as a starting point for sentence for a plea of guilty is afforded only in circumstances where the plea is timely.

In my judgment, taking into account what had happened, in particular the change of stance of the defendant in relation to her plea, her guilty plea before me cannot be said to be a timely plea. In all the circumstances, having regard to the submission of Mr Ho, I am of the view that the defendant is only entitled to a discount of about 25 per cent in HCCC 61/2015.

For the reasons I have said, I sentence you, in HCCC 61/2015, to 5 years and 5 months’ imprisonment, and for HCCC 53/2017, an imprisonment term of 5½ years.

You have committed two offences for the same type of drug but at different times, almost two years apart. I have to consider the appropriate overall sentencing having regard to totality. In all the circumstances, I order 2 years and 4 months of the sentence of HCCC 53/2017 to run consecutively to the sentence of HCCC 61/2015. As a result, you have to serve a total sentence of 7 years and 9 months for the two cases.