HKSAR v. Lam Chi Kwan

HCCC 435/2017

[2018] HKCFI 713

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 435 OF 2017

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Before: Hon Zervos J in Court

Date of Hearing: 28 March 2018

Date of Sentence: 28 March 2018

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REASONS FOR SENTENCE

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1.The defendant had previously been charged in May 2005 with offences concerning drug trafficking, taking a conveyance without authority and possession of an identity card, but after a court appearance and having been admitted to bail, absconded from the jurisdiction. On 17 May 2017, he surrendered himself to the police in relation to these offences. He had in the meantime gone to mainland China where he claims he was forced by a criminal syndicate to which he belonged to continue carrying out drug activities. He was eventually arrested by the authorities in mainland China for his drug activities in June 2008 and later convicted and sentenced to 12 years’ imprisonment. He was released from prison on 4 August 2016.

2.The four counts on the indictment to which he has pleaded guilty are taking a conveyance without authority on 8 April 2005, contrary to section 14(1) of the Theft Ordinance, Cap 210, (Count 1); trafficking in a dangerous drug on 4 May 2005, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, (Count 2); possession of an identity card relating to another person on 4 May 2005, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177, (Count 3); and failing to surrender to custody without reasonable cause on 3 June 2005, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221, (Count 4).

3.The facts giving rise to the offences as agreed by the defendant can be briefly stated as follows.  At around 1:30 am on 4 May 2005 the police had set up a roadblock outside 33 Sheung Yee Road, Ngau Tau Kok, Kowloon, to carry out routine checks of vehicles.  At 1:48 am the police stopped the defendant who was driving a motorcycle.  He was asked to produce his driving licence but he said he had left it at home.  A check of the motorcycle’s chassis number revealed that the motorcycle bore another registration number and had been reported stolen on 8 April 2005.  When the police questioned the defendant about the finding he said that he stole the vehicle.  After being cautioned he said: “Ah Sir, two days ago, I saw the vehicle in a street and an ignition key inserted.  I stole it for my own use.” Subsequent inquiries with the owner of the motorcycle revealed that on 7 April 2005 he noticed that his vehicle was not where he had parked it and reported the matter to the police.  He had not lost his keys and when he recovered the motorcycle he found that the ignition hole had been prised open and that the lock of the rear box had also been prised open and damaged.

4.The defendant was then searched by the police and they found in his two trouser pockets 3 transparent bags and in a black travel bag that he was carrying 2 transparent packets, containing 65.183 g of a crystalline solid containing 64.57 g of methamphetamine hydrochloride, commonly known as Ice.  The estimated retail value of the Ice at that time was $22,487. The defendant was cautioned and he responded by saying: “Ah Sir, all the drugs belong to me.  I will cooperate with you.”  The police on further checking found that the defendant had in his possession $7,240 cash and a notebook containing simple English with names and numerals in his black travel bag. 

5.The police also found in the defendant’s possession a Hong Kong identity card which related to another person.  The defendant was again cautioned and he responded by saying: “Ah Sir, two days ago, I picked it up in the street and meant to put it in a post box.  However, I forgot to do it.”

6.In a subsequent video recorded interview, the defendant said in relation to the drug trafficking offence that he had been asked by Ah Ko to deliver drugs to Mong Kok for a reward of $500 for each ounce he delivered.  He said that he had met Ah Ko a week before and knew that the drug was Ice.  In relation to the offence of taking a conveyance, he said that he found the motorcycle with its ignition key in it two days prior and took the motorcycle for fun.  In relation to the offence of possession of another person’s identity card, he said that he picked it up in Mong Kok the previous week and had originally planned to put it in a post box but forgot. 

7.Following the defendants arrest and charging he was brought before the Magistrate’s Court on 6 May 2005.  His case was adjourned to 3 June 2005 and he was released on court bail.  On the adjourned date, he failed to surrender to custody and a warrant of arrest was therefore issued against him.

8.On 17 May 2017, some 12 years later, the defendant surrendered himself to Sau Mau Ping Police Station.  He explained that he did not attend the court hearing fixed for 3 June 2005 because he did not want to go to prison.  He said that as he had been running away for more than 10 years, he wanted to be a normal person and was willing to take responsibility for what he had done in the past.  He therefore decided to surrender himself to the police.

9.The defendant now admits and accepts that at the relevant time he took the motorcycle without the owner’s consent, that he was trafficking in the Ice that was found on him and that he possessed another person’s identity card unlawfully.

10.The defendant is now 47 years old.  He was born in Hong Kong and attained Form 2 level education.  After leaving school in 1985 he had a variety of jobs but finally settled working as a decoration worker. From 1985 to 2004, the defendant had a series of serious criminal convictions, mainly offences relating to drugs or stealing.  His most serious conviction was in 1998 for robbery for which he was sentenced to 7 years’ imprisonment.

11.Mr Boyton, on behalf of the defendant, has submitted in mitigation that the defendant was at the time of the offences in 2005 working for a criminal syndicate.  When he was released on bail, members of the syndicate confronted him and made him leave Hong Kong and go to mainland China to continue working for the syndicate there.  I am told that he engaged in the drug trade in mainland China for the syndicate but was eventually convicted for illegal possession of dangerous drugs on 23 March 2009 and sentenced to 12 years’ imprisonment.  He was released from prison on 4 August 2016.  I am told that he has a partner who he has been with for 15 years and she has a child that is 1 year-old. 

12.The defendant has submitted a letter to the Court in which he explains that he was irresponsible as a youth and mixed with a bad crowd.  He acknowledges his criminal record and having lived a life of crime. He explains that because he got bail, the syndicate members believed that he had disclosed information about the syndicate to the authorities.  They therefore forced him go to mainland China to traffic drugs for them there.  He said he had no choice at the time.  He explains that he had spent 8 years in prison in mainland China and it was at that time that he woke up to himself and realised that he had to change his ways.  He said he had the support of family, friends and his girlfriend, and he decided that he would turn over a new leaf. To this end, he decided to return to Hong Kong and surrender himself to the authorities and accept responsibility for his past misdeeds. 

13.As would be appreciated, even though the defendant pleaded guilty to Counts 1, 2 and 3 in the Magistrate’s Court, it was only after he had absconded and returned to Hong Kong.  So on that basis, he has not entered his pleas of guilty at the earliest opportunity.  That is not the case with Count 4 because that was laid against him when he returned, and he pleaded to that offence in the Magistrate’s Court at the earliest opportunity.  For Count 4, the defendant is entitled to a full one-third discount. 

14.The issue to be resolved is the discount to which the defendant is entitled in relation to Counts 1, 2, and 3 for his guilty plea.  In HKSAR v Wong Cheuk Fei [2013] 5 HKLRD L1, the Court of Appeal was concerned, amongst other things, with the discount given to the appellant by the sentencing judge of one-third for his pleas of guilty having absconded for over four years but eventually surrendering to the authorities which Lunn JA (as Lunn VP then was), giving the judgment of the Court, described as extremely generous given that the pleas were anything but timely. He noted that the sentencing judge would have been entitled to give a reduced discount.  

15.More recently, there has been a revision of the practice of affording discounts for guilty pleas in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, in which Lunn VP, with whom the other judges agreed, reviews the relevant case authorities. 

16.In HKSAR v Lo Kam Fai [2016] 2 HKLRD 308, the Court of Appeal reviewed the sentence imposed on the appellant who had absconded while on bail and failed to attend his trial.  Lunn VP in his judgment held that the discount for the substantive offence in that case was reduced in circumstances not to punish the appellant for absconding but for its consequences, namely that his plea of guilty was a late plea and a second trial was necessary.  He said:

“31. It has been long established in this jurisdiction that the 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 that plea is timely. The appropriate reduced discount to be afforded to a defendant where a plea of guilty is not timely will reflect the individual circumstances of the particular case. A range of factors may be relevant: the length of time that justice has been delayed; whether or not the defendant surrendered to the authorities ultimately or whether it was necessary for him to be rearrested; the inconvenience and wasted expense and costs caused by the aborted scheduled hearing, to witnesses, counsel and the court. That is particularly the case, if witnesses have travelled to Hong Kong from overseas or remained in Hong Kong, where otherwise they would not have done so, in order to give evidence. There may be many other relevant factors.”

17.He went on to explain that the usual range of discount afforded to a defendant who has absconded is about 20 to 25 percent, but added:

“…Of course, there are circumstances peculiar to a particular case which will justify discounts outside that range. Within the usual range, the Judge has a discretion in determining the discount appropriate to the circumstances of any particular case.”

18.I have decided that in the circumstances of this case, I will give a discount of 25 percent in relation to Counts 1, 2 and 3. 

19.As to Count 1, taking a conveyance without authority, I will adopt a starting point of 6 months’ imprisonment, which I will reduce by 25 percent for the defendant’s guilty plea to 4½ months’ imprisonment.  See R v Tam, Simon,HCMA 490/1996, 12 August 1996, unreported. 

20.As to Count 2, trafficking in a dangerous drug, I will adopt a starting point of 9 years and 8 months’ imprisonment, which is the tariff for the narcotic content of 64.57 g of Ice according to the then applicable tariff set out in AG v Ching Kwong Hung [1991] 2 HKLR 125 (between 10 to 70 g the sentence should range from 7 years to 10 years’ imprisonment).  I will reduce the starting point by 25 percent for the defendant’s guilty plea to 7 years and 5 months’ imprisonment. 

21.As to Count 3, possession of an identity card relating to another, I will adopt a starting point of 12 months’ imprisonment, which I will reduce by 25 percent for the defendant’s guilty plea to 8 months’ imprisonment.  See HKSAR v Li Chang Li [2005] 1 HKLRD 865 and HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903. 

22.As to Count 4, failing to surrender to custody without reasonable cause, I will adopt a starting point of 6 months’ imprisonment, which I will reduce by one-third for the defendant’s guilty plea to 4 months’ imprisonment.  See HKSAR v Lo Kam Fai [2016] 2 HKLRD 308. 

23.Taking into account the totality principle and the particular circumstances of this case, I order that the sentences on Counts 1 and 3 run concurrently with each other; the sentences on Counts 2 and 4 run consecutively to each other; and 3 months of the concurrent sentences on Counts 1 and 3 run consecutively to the consecutive sentences on Counts 2 and 4, thus resulting in a sentence of 8 years’ imprisonment. 

Ms Chan Sze Yan, SPP of Department of Justice, for HKSAR

Mr David Boyton, instructed by Ivan Tang & Co, assigned by Director of Legal Aid, for the defendant