HKSAR v. Lin Ho Yin Paul

DCCC 413/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 413 OF 2017

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of “Attempting to traffic in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and section 159G of the Crimes Ordinance, Cap 200. The defendant was found to be delivering 235 grammes of a crystalline solid containing N-isopropylbenzylamine, which is not a dangerous drug, but he believed the substance to be “Ice” (methamphetamine hydrochloride).

Summary of facts

2.At about 11:22 pm on 23 February 2017, police officers were patrolling at Kong Pui Street, Shatin, New Territories and saw the defendant acting suspiciously.  When the officers went forward and revealed their identities, the defendant suddenly fled.  After the officers caught up with the defendant, the defendant put up a struggle and was eventually subdued by the officers.  

3.Upon search, a plastic bag containing some white crystalline solid was found in the shoulder bag carried by the defendant.  The defendant was therefore arrested for trafficking in a dangerous drug.  Under verbal caution at the scene, the defendant said as he had no money, he helped others to traffic “Ice” for a reward of HK$500.

4.In a subsequent video-recorded interview, the defendant voluntarily admitted:-

(a) he knew “Ice” is a dangerous drug;

(b) he met a man called “Ah Wah” and borrowed money from him before;

(c) on the material day he asked Ah Wah to lend him money again but Ah Wah refused. Instead, Ah Wah asked him to deliver “Ice” for a reward of HK$500;

(d) on the same night he received a call from Ah Wah, in which Ah Wah asked him to retrieve a plastic bag in Kong Pui Street and delivered it to Ah Wah;

(e) at the material time, he went to Kong Pui Street and retrieved a plastic bag as instructed by Ah Wah;

(f) he opened the plastic bag and saw the contents which he believed to be “Ice”;

(g) he intended to deliver the plastic bag to Ah Wah but was intercepted by police officers;

(h) he contacted Ah Wah by phone.

5.Government chemist subsequently confirmed that the substance in the plastic bag was 235 grammes of a crystalline solid containing N-isopropylbenzylamine, which is not a controlled substance under the Dangerous Drugs Ordinance, Cap 134, nor Part I of the Poisons List of the Pharmacy and Poisons Ordinance, Cap 139. N-isopropylbenzylamine is a chemical compound used by illegal methamphetamine manufacturers as a diluting agent.

6.At the material time, the defendant attempted to unlawfully traffic in methamphetamine.

Mitigation

7.The defendant is 27 years old and is single.  His parents separated when he was only 7 and he was brought up by his grandfather.  He received education up to secondary 3 in Taiwan and returned to Hong Kong when he was 15.  He now lives alone in a public housing unit but he has to take care of his grandfather who resides at the same estate.  Before his arrest, he worked as a casual transportation worker earning daily wages at HK$500.

8.The defendant has two previous convictions which were both possession of a dangerous drug.  The two cases were sentenced on the same day and he was sentenced to drug addiction treatment centre (“DATC”) on 2 September 2015.  He was recalled to the DATC on 5 February 2016 and was released in October or November 2016.  He was recalled again after the arrest of this case and was released on 30 May 2017.  Currently he is detained in Lai Chi Kok Reception Centre.

9.Defence submitted that the defendant is very remorseful now.  He made full confession to the police officers immediately after he was arrested and now pleaded guilty to the charge.  Defence also submitted the mitigation letters from the grandfather and three aunts of the defendant.  They all said that the defendant had a very difficult upbringing and is not a person of bad nature.  They all urged the court to impose a lenient sentence. 

Sentencing consideration

10.Both the prosecution and the defence drew the court’s attention to the case HKSAR v Li Oi Yee [2012] 1 HKLRD 276 in which the Court of Appeal approved 4 years’ imprisonment as the appropriate starting point for trafficking 39.5 grammes of substance which the defendant believed to be “Ice” but in fact was not a dangerous drug.  As pointed out by the Court of Appeal, though the defendant did not really traffic any dangerous drug, the harm of the offence “is the harm created by the advancement of the culture and of the business of trafficking in dangerous drugs.”  Further, the mens rea of the two offences are precisely the same.

11.For trafficking “Ice”, the tariff was set down in AG v Ching Kwok Hung [1991] 2 HKLR 125 and later modified by HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  For 70 to 300 grammes of “Ice”, the sentence is 11 to 15 years’ imprisonment.  The substance found on the defendant was 235 grammes of crystalline solid.  As the substance was not really “Ice”, the court would not know its purity.

12.In any event, adopting the approach of Li Oi Yee case and after considered all the circumstances of this case, I am of the view that 3 years and 6 months is the appropriate starting point.  After giving one third discount for the guilty plea, the defendant is sentence to 2 years and 4 months’ imprisonment.