HKSAR v. Lee Ka Lam

DCCC 721/2017

[2018] HKDC 182

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 721 OF 2017

------------------------------

------------------------------

---------------------------------------

REASONS FOR SENTENCE

---------------------------------------

1.Police raided a studio flat in Mong Kok, Kowloon and found a number of different drugs inside, both dangerous drugs and Part I poison, along with some drugs packaging materials.

2.The defendant, a 29-year-old woman, pleaded guilty to 2 counts of offence, namely,

Charge 1 - “Trafficking in dangerous drugs”

a):	0.77 gramme of a crystalline solid containing 0.76 gramme of methamphetamine hydrochloride;
b):	1.55 grammes of cannabis in herbal form;
c):	8 tablets and 1 tablet fragment containing 0.07 gramme of nimetazepam (commonly known as No. 5);
d):	5.68 grammes of a solid containing 5.23 grammes of cocaine.

Charge 2 – “Possession of Part I Poison”

a):	3.2 grammes of a crystalline solid containing para-aminobenezenesulphonamide.

3.In the afternoon of 22 May 2017, police officers had been lying in wait outside a flat at Canton Road, Mongkok for some time and that afternoon went by uneventfully until about 7 p.m., when a 24-year-old woman came to the door of the flat, officers took this opportunity to gain entry to the flat by stopping the woman.

4.The defendant was there cleaning the toilet at the time when the flat got raided. Police officers executed a search warrant and discovered drugs from various places in the flat:-

a): On top of a plastic box in the living room

“2 re-sealable plastic bags containing ice together with an electronic scale”

b): Inside a cash box on the bed in the living room

(1): 1 re-sealable plastic bag containing Part I poison;

(2): 1 plastic packet containing cannabis herbs;

(3): 2 foilpacks containing 8 tablets and 1 tablet fragment ( No.5);

(4): 27 plastic bags containing cocaine.

Among the drugs also found 3 bundles of resealable plastic bags (247 in total) and an electronic scale.

c): In the living room

“Inside a rucksack there are 62 resealable plastic bags and an electronic scale”

5.At the scene the defendant gave a statement claiming ownership over all the drugs.

6.The defendant has 3 previous convictions two of which are drug-related – one trafficking, the other possession. For the trafficking offence, she was given a prison term for 3 years and 8 months in 2008. Her last conviction in 2015 is possession of drugs for which she was sentenced to DATC.

7.The court heard that the defendant was married in 2014, the marital relationship did not last long, the couple was separated a year after marriage.

8.Defendant, who used to live with her mother, had the responsibility of taking care of her, counsel said. The mother, who was having brain tumours, had nevertheless paid the defendant a visit whilst she was in custody as a result of the present offence. The defendant, knowing that her mother wanted her to be a law-abiding citizen, had promised her mother she would never get into trouble again and would turn over a new leaf.

9.Unfortunately, the mother passed away two weeks after the visit. Now the mother’s gone, she would never be able to witness the defendant’s changes. In her letter to the court, the defendant expressed her remorse for the wrongs she had done and her wishes to stay away from drugs.

10.In sentencing a drug trafficker dealing in multiple drugs (i.e. more than one type of drug), there are different approaches to be adopted such as individual as well as combined approach.

11.In Wong Kin Kau CACC 269/2009, the Appellate Court also mentioned the potential for the mixing of drugs into a cocktail to enhance their potency as an aggravating feature. 

12.Here in the present case the bulk of the drugs is cocaine, 5.68 grammes, worth about $5,500, while the rest, i.e. ice, cannabis and the No.5 tablets, are each of a small amount worth no more than a couple of hundred dollars.

13.Given the relatively minute quantity of the other drugs in comparison with the bulk of the drugs (cocaine), I do not think it will add much to the overall sentence whichever approach the court is to adopt, nor do I think it would have a noticeable effect on potency when the drugs do mix, so I would rely solely on the amount of cocaine for the purpose of sentencing.

14.There are sentencing guidelines for trafficking in this type of drug, for up to 10 grammes, the term for consideration is one of 2 to 5 years. Given the amount of cocaine the defendant admitted trafficking, i.e. 5.23 grammes, I take 42 months as starting point.

15.Insofar as the offence of possession of Part I poison is concerned, the maximum term is one of 2 years. Given the amount she was found in possession, I take 3 weeks as the starting point.

16.As far as mitigation is concerned, apart from her guilty plea, there is not anything of substance. Her plea is a timely one, so she is entitled to a full one-third discount; after giving the appropriate discount, the term for trafficking is reduced to 28 months, and for the other offence 2 weeks.

17.Taking into account the totality principle, I order that both terms be run concurrently with each other, the total term is of 28 months’ imprisonment.