HKSAR v. Lam Wah Kit

HCCC 393/2017

[2018] HKCFI 422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 393 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 pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The defendant was found to be inside a hotel room with a female. Drugs were found in a drawer of a cabinet, namely 17 transparent resealable plastic bags with drugs upon analysis to be 71.5 grammes of a crystalline solid containing 70.3 grammes of methamphetamine hydrochloride, one transparent resealable plastic bag containing 0.33 grammes of herbal cannabis, one transparent resealable plastic bag containing 0.14 grammes of a solid containing 0.12 grammes of cocaine, one foil pack containing five tablets containing 0.05 grammes of nimetazpam.

Originally, the defendant admitted all the drugs belong to him and claimed the drugs were for his consumption.

The retail value of all the drugs was in the region of $22,556.

He now admits and accepts that the dangerous drugs were for the purpose of unlawful trafficking.

The defendant is now aged 42. He has a total of 16 previous court appearances involving 20 items of conviction. Five of them were drug related and one of which dated 3 May 2012 was trafficking in dangerous drugs for which he was sentenced to 4 years and 2 months’ imprisonment. However, after his discharge from prison, he committed the offence of possession of dangerous drugs again in 2015 and with another charge of misleading a police officer, he was sentenced to a total of 9 months’ imprisonment. He was last discharged from prison 15 April 2016. It was less than a year before he committed the present offence.

By way of mitigation, I was told that he was a drug addict mainly consuming ‘Ice’ for some 20-odd years. I am told that he was remorseful and his girlfriend had given birth to a son on 31 December last year and counsel said that he is prepared to turn over a new leaf with the support of his girlfriend after his discharge from prison. Counsel submitted that the predominant drugs being ‘Ice’ in this case, the weight of other drugs are of negligible quantity. I am urged to take the starting point as indicated in Tam Yi Chun at 11 years.

Secondly, counsel told me that the defendant claimed that he intended to keep 25 per cent of the ‘Ice’ for his own consumption. Counsel referred to the case of Chow Chun Sang and urged for discount between 10 to 25 per cent. Further, counsel urged for the 30 per cent on the plea as the defendant has pleaded at the earliest possible opportunity.

In sentencing the defendant, I have taken into account his plea, the nature of the drugs, the relevant sentencing tariff and mitigation forwarded by counsel on his behalf. According to the case of Tam Yi Chun, trafficking between 70 and 300 grammes of ‘Ice’ attracts 11 to 15 years’ imprisonment. All the other drugs added up to 0.5 grammes. This amount is insignificant and will not affect the starting point of the ‘Ice’. I will not take those into account. I will adopt 11 years as a starting point. In deciding the issue of self-consumption, Stuart-Moore VP pointed out in a case of Wong Suet Hau that amongst the various considerations are the following.

Firstly, the quantity and value of the drugs. Here there is 70.3 grammes of ‘Ice’ together with other insignificant amount of drugs that had a retail value of over HK$22,000.

Secondly, I have looked at how the drugs were wrapped and how many packets there were. In relation to the ‘Ice’, there were 17 packets and also there were bundles of transparent resealable plastic bags in different sizes in the room.

Thirdly, the place where the drugs were discovered. It was in a hotel room checked in by the defendant’s girlfriend two days before his arrest.

The other factor is the presence of paraphernalia associated with the drugs. There was none in the present case associated with inhaling or taking of ‘Ice’. Then there was a claim that the defendant was a habitual user or a drug addict in the present case. There is evidence as urine test report during his remand shown positive to ‘Ice’. The court also takes into account the explanation given by the defendant following his arrest. Originally he claimed all the drugs there were for his own consumption and whilst he claimed to have taken ‘Ice’ twice in the hotel room. His girlfriend had no idea about it and that the ‘Ice’ bottle that he claimed to have used had been dropped and broken.

As to the defendant’s general means, counsel had submitted that his income was insufficient for him to feed his addiction and that he had to resort to trafficking and the defendant has previous convictions for both possession and trafficking in dangerous drugs. It is worth noting that in Wong Suet Hau’s case, Stuart-Moore VP said specifically that the above factors could be determined without a Newton hearing and only if where it was accepted that a significant proportion of the drugs were for the defendant’s own consumption that the court should adjust sentence to reflect the fact that not all the drugs were for trafficking. The sentencing courts are required to look with great care for surrounding circumstances in order to decide whether or not to accept the contention of self-consumption.

The case of Chow Chun Sang quoted by defence counsel was considered in Tam Yuen Ling CACC 159/2015. The Court of Appeal in Tam Yuen Ling noted that in Wong Suet Hau, the factual situation was that there was no readily discernible quantity which the applicant possessed for the purpose of self-consumption. The prerequisite remains for a sentencing court to find on the available evidence that a significant proportion of the drugs were for the defendant’s own consumption. What then is a significant amount? From the case of Tam Yuen Ling, it can be seen to be at least more than half of the drugs as in Chow Chun Sang or two-third as in the case of Cheuk Kin Man [2010] 5 HKLRD 561.

In the present case, 17 packets of ‘Ice’ were all placed together with other insignificant amount of other drugs in a transparent plastic bag. The defendant claimed through his counsel that 25 per cent was for his own consumption. Whilst I do accept that some of the ‘Ice’ might be for his own consumption, I do not accept that any significant or readily quantifiable division was for the defendant’s own consumption to warrant a reduction from the starting point. I see nothing in this case which would warrant any further discount from the one-third discount for his plea and his remorse is subsumed into the one-third discount.

He is sentenced to 88 months’ imprisonment. That is 7 years and 4 months.