HKSAR v. Lam Hing Wai

HCCC 418/2017

[2018] HKCFI 1207

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 418 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 13 November 2017, Lam Hing-wai pleaded guilty before a magistrate in the Eastern Magistrates' Court on a charge alleging that on 13 March 2017, at a Customs Control Point at Lok Ma Chau, in the New Territories, he trafficked in a dangerous drug, in particular 349 grammes of a mixture in the form of a block containing 274 grammes of heroin hydrochloride. In addition he admitted a set of facts concerning that charge. He was then committed to the High Court for sentence and he is convicted upon that basis.

At 9.57 pm, on 13 March 2017, Lam Hing-wai and a female were intercepted by officers of the Customs & Excise service. A search was conducted and found in a jacket carried by Mr Lam was the package containing the drugs in question particularised in the charge. He was arrested and cautioned. Amongst other things the accused says he didn't know what he carried. A further interview under caution was conducted by way of a video recorded interview and the accused remained silent. The estimated retail value of the drugs on the premise they were available for sale on a retail basis was $248,800.

Mr Lam is a 37-year-old man. He was born in Hong Kong. He reached form 2 in secondary school and since leaving school at 16 he has worked in a variety of jobs ranging from kitchen worker to construction worker. His last employment before arrest was that of construction worker. He comes, I am satisfied, from a close and loving and supportive family.

Evidence for the support of his family and their care include a letter from his mother which expresses both anxiety and support. She blames herself for what has happened in this case. The accused, too, has expressed in writing his remorse for the matter and I accept that he is remorseful for the matter. He tells me that his reward was to be between $5,000 and $10,000 and I accept that as well. I have also had a letter from the Hong Kong Christian Kun Sun Association and in particular from Mr Ben Leung who has been helping the accused in prison. He speaks well of the accused and he indicates that he is undertaking courses in the prison. That is good news.

There is no secret to the fact that for these drugs this man is going to prison for quite a while. However, from what I have heard from Mr Chau, barrister at law acting for Mr Lam, he is determined to turn his life around. I can only hope that this man grasps with both hands the opportunity to do that whilst he is suffering the detriment of prison.

He has three previous convictions including a conviction for trafficking in dangerous drugs in 2001. For that he was sentenced to 18 months’ probation. He has two assault convictions in 2010 but is otherwise of clear record. Plainly the conviction for trafficking was of the order of something like 17 years ago. He would have been about 19 years at the time. While the conviction in 2001 is a previous conviction for the same offence it is a very long time ago. An order for probation was made and therefore I do not propose to take that into account against Mr Lam.

The community of Hong Kong has, for many years, taken a serious view of drug-trafficking and, in particular, trafficking for heroin. Heroin is a very addictive substance and the harm that it can do together with the dangerous association with its ingestion and difficulty in throwing off any addiction are well-known features of the drug.

The cost to the individual who consumes dangerous drugs is only one factor. The other factor is of course the cost to the community in terms of matters such as medical treatment for those who have ingested heroin and particularly those who seek treatment to rid themselves of the addiction. In the light of the attitude of the Hong Kong community our courts have taken a similarly serious view which is reflected in the suggested guidelines for this offence.

In relation to heroin the guidelines were established in R v Lau Tak Ming & Another [1990] 2 HKLR 370, where the Court of Appeal indicated that for quantities between 200 grammes and 400 grammes a sentence of somewhere between 12 and 15 years is indicated on conviction after trial. In my judgment, if this matter had gone to trial a sentence of 12½ years would have been appropriate.

There is of course another dimension. Since at least the decision in the HKSAR v Abdallah [2009] 2 HKLRD 437 the courts of Hong Kong have held that an enhancement of the sentence otherwise appropriate under the relevant guidelines should take place to reflect the fact that the drugs were taken by the offender across a border. More recently in HKSAR v Chung Ping Kun [2014] 6 HKC 106 the Court of Appeal outlined a framework for analysis as to the appropriate level of enhancement of sentence for cross-border trafficking.

For quantities of dangerous drugs such as heroin, for up to 250 grammes an enhancement of 6 months was suggested. For quantities between 250 grammes and 500 grammes an enhancement of between 6 months and 12 months were considered appropriate. The Court of Appeal in HKSAR v Chung Ping Kun [2014] 6 HKC 106 made it plain that the suggested enhancements did not imply a mathematical approach to this aspect of sentencing. This was recently affirmed this month in HKSAR v Benitas Zerma Anibal Ronal [2018] HKCA 67 at paragraphs 14 and 15.

In my judgment, an enhancement of 7 months is appropriate in the circumstances of this case. On that basis a starting point of 13 years and 1 month would be appropriate. The mitigation starts with the plea of guilty at the earliest possible moment. The record of proceedings reveals that counsel instructed by the Director of Legal Aid has advised as early as 25 September 2017 that there would be a plea of guilty on the return date. On that date a plea of guilty was tendered. The courts recognise that a plea at this juncture in the proceedings should ordinarily attract a discount of one-third. That is clearly the appropriate discount in this case.

Lam Hing-wai, please stand up. Doing the best I can to combine justice and mercy in this case, the sentence of this court is that you be imprisoned for 8 years and 8 months. Thank you very much. You may sit down.