HKSAR v. Lam Hing Chit

HCCC 75/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 75 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

Lam Hing-chit was convicted after trial on an indictment between a time in August 2015 and 4 September 2015, it is alleged that he conspired with Lui Mei-yi and persons unknown to unlawfully traffic in a dangerous drug. The drug concerned was ketamine. Mr Lam must now be sentenced.

The factual basis of sentence must, of course, be what was proved at trial and accepted by the jury together with matters advanced in mitigation which are accepted by this court.

In relation to the factual basis for sentencing, an important source of evidence in this regard came from the person who, on any view, was the principal witness for the prosecution, Lui Mei-yi. It is manifestly plain that, by their unanimous verdict, the jury must have accepted as true what she said about Mr Lam, and in my view, the jury were fully entitled to come to that view. They must have concluded that the testimony of Lam Hing-chit was untrue. In my view, they were amply justified in that conclusion. Although, on a superficial analysis, the testimony of Mr Lam might have seemed to have some merit, the more one dug into the details of the case, the more facile his testimony became.

It is clear beyond a peradventure that the jury must have come to this view because they were directed in classical terms, that if they thought the testimony of Mr Lam was true or might be true, that was, for all practical purposes, the end of the case for the prosecution.

The second thing which would have assisted the jury in analysing and accepting as true the testimony of Ms Lui was the fact that at least two items of independent support for her testimony existed. Those were fingerprints found on the sticky side of the adhesive wrapping around packages containing the dangerous drugs imported from the mainland and intercepted, in a rather neat piece of police work, in Sham Shui Po on 4 September 2015. Also, the letter written by Mr Lam to Lui Mei-yi in March 2016. I think the jury were clearly right to accept the testimony of Ms Lui. That is so despite the fact that there was the odd quirk or oddity in her testimony.

The facts which I accept as having been proved beyond reasonable doubt in the trial are that, in early August 2015, Lam Hing-chit received a request from Lui Mei-yi to join him in trafficking in dangerous drugs. Ms Lui believed that Lam Hing-chit was already a trafficker in dangerous drugs and wanted to join his operation. Moreover, she said that Lam Hing-chit did not agree to the proposal right away and after a time, which was not clearly specified in her evidence given at his trial, he agreed, as it were, to take her on.

Pausing there for a moment. The belief on the part of Lui Mei-yi that Lam Hing-chit was, at the time of her proposal, already a trafficker is, I am satisfied, a belief genuinely held by her. However, whether or not it is a well-founded belief is another thing. In my judgment, it probably is, but I am not satisfied so that I am sure that it is, and therefore it is not something I could hold against Lam Hing-chit in sentencing. I am, in any event, bound to sentence him only for his conduct once the conspiracy was formed.

Once Lam Hing-chit agreed to take on Lui Mei-yi, she was put on trial. She said that while she was on trial, each Sunday, for at least a couple of Sundays, she met the accused and was given 60 packets of dangerous drugs, some of which were small packets containing a small quantity of ketamine and some of which were larger packets containing ketamine. Her job was to receive calls from customers, make arrangements for delivery of the drugs to customers and receive payment. Around midnight, she was to meet Lam Hing-chit and account for her takings in her stock of ketamine for sale. She would be paid 10 per cent of the proceeds of the takings. She said she made about $1,000 a day on this basis.

There came a time, almost certainly a time in August 2015, where Lui Mei-yi went to work for Lam Hing-chit full time after she had quit her regular job as a clerk in a motor trading company. She testified, and I am satisfied that the jury must have accepted as true, that she then proceeded to work on the same basis I have just described but on the basis of two or three days per week. There may have been more days in each week than that. She was working, in effect, full-time for the accused.

Lui Mei-yi testified, and the jury must have accepted as true, that at a little time later, she became involved in trafficking of larger packets of dangerous drugs. Those packets were, so she said, of about 250 grammes in weight. For this, she received substantially more money. During the time which she conspired with Lam Hing-chit, she came into contact with a person by the name of “Fu Chai”. The jury must have accepted as true that Fu Chai and Lam Hing-chit were working together in the conspiracy to traffic in dangerous drugs.

The verdict of the jury means they must have accepted as true that Lam Hing-chit asked Lui Mei-yi to store a large quantity of ketamine at her house. Lui Mei-yi testified that this was for temporary purposes, but for the purpose of sentence, this does not matter greatly. Again, it is almost certainly true but, in the end, it does not matter. What is critical is that the jury, by their verdict, must have found that Lam Hing-chit passed the bag of ketamine to Lui Mei-yi for the purpose of storage.

Finally, the jury must have found, by reason of their verdict, that Lam Hing-chit was actively involved in the movement of drugs across the border. We know about one of those shipments because the fingerprints of Lam were found on the wrapping of the drugs which were delivered in Sham Shui Po on 4 September 2015. The jury, by their verdict, must have rejected as untrue the explanation offered by the accused as to how his fingerprints came to be on the wrapping.

Ms Lui testified that she was involved in receiving one other parcel in this component of the conspiracy. It is not known what the weight of drugs might have been on that other parcel. I am sure that that importation was part of the agreed scope of the conspiracy. There are almost certainly other deliveries of that kind and it is highly probable that those accompanied, or were closely accompanied, by earlier visits by Lam Hing-chit to the mainland as revealed in his movement records.

However, I am not sufficiently certain of the additional deliveries beyond the extra one that Lui Mei-yi referred to, save to say that I am sure that this is so and I leave possible other deliveries out of account in terms of assessing sentence.

According to Lui Mei-yi, on 4 September 2015, both Fu Chai and Lam Hing-chit reminded her to take something out of the stock of drugs held by Ms Lui at her home. She did this and in the course of the arrest, the police found ketamine in her handbag. It is a clear inference from the facts that the jury must have found proved that what she was carrying in her handbag was the product of the reminder from both Fu Chai and Lam Hing–chit.

What is known is the weight of the drugs in three respects: 2.976 kilogrammes of ketamine found in the cardboard carton parcel which had been delivered to Sham Shui Po and was picked up by Lui Mei-yi; two, the package found in her handbag contained 82.6 grammes of ketamine; and 3.147 kilogrammes of ketamine was found in the bag that Lam Hing-chit asked Ms Lui to store in her home. The total amount of ketamine is 6.025 kilogrammes and was contained in a total mixture weighing 9.994 kilogrammes.

On any view, even the known amounts of ketamine which were plainly and obviously part of the conspiracy in which Lam Hing-chit was an active member is very substantial. As I have outlined earlier, there are a number of acts of trafficking undertaken in the course of this conspiracy in which Lam Hing-chit was an active member which do not have a weight of ketamine which can be safely assessed.

We do not know the weight of the bags of ketamine and the number of bags of ketamine that Lui Mei-yi was asked to traffic on what I might call a retail basis. We know about two occasions but any attempt at an estimate of the weight of ketamine must end in frustration because Lui Mei-yi said sometimes she sold more than her original stock and sometimes she did not sell out.

We also do not know with any real precision how many times she acted in this capacity and trafficked on a retail basis. We do not know what the total weight of the 250 grammes packages was that she trafficked in. We do not know the weight of either occasion on which she was asked to receive a parcel of dangerous drugs imported from the mainland.

All of these activities involve the active participation of Mr Lam. Although Ms Lui did not directly say so, I am satisfied that the only reasonable inference from the proved facts is that Mr Lam, while not the head of the conspiracy, was certainly not a lowly minion and he was what I might term middle management.

For the avoidance of doubt, on no account could it be said that Lam Hing-chit corrupted Lui Mei-yi. She joined the conspiracy willingly and for the purpose of making money to support a lifestyle which she could not support as a mere clerk in a motor trading company. Mr Lam took on a willing worker.

Lam Hing-chit is aged 31. He was born in the mainland and is the holder of a Hong Kong Permanent Identity Card. He was educated up to Form 7 at Saint Joseph’s Anglo-Chinese School in Hong Kong. He has multiple previous convictions of a comparatively minor nature, starting in about 2003 when he would have been about 18 years of age. In 2007, he started to commit offences in relation to drugs.

The crucial entries on his criminal record are as follows, and there I set out the drugs reference that you see in the criminal record.

Date	Description of Offence	Sentence
16/4/07	trafficking in dangerous drugs	10 months
23/4/07	possession of dangerous drugs	8 months
25/3/09	trafficking in dangerous drugs	8 years, 4 months
20/10/16	trafficking in dangerous drugs	8 years, 8 months
20/10/16	trafficking in dangerous drugs	4 years, 8 months
20/10/16	possession of dangerous drugs	6 months

Some of the sentences were partly concurrent with each other. Most importantly for the present purpose, the second conviction in October 2006, for trafficking in dangerous drugs for which the accused was sentenced to 4 years 8 months, was ordered to be partly consecutive to the sentence in the case in which, on the same day, he received 8 years 8 months, and the possession of dangerous drugs was also made partially consecutive. The mechanics of that do not matter but the overall sentence received on 20 October 2016 was 9 years and 2 months.

The last convictions were in the High Court.

So far as those which were dealt with on 20 October 2016, they were plainly each separate crimes. Clearly, the judge who heard and determined the proceedings on 20 October 2016, sought to achieve an overall sentence in order to attain a just result.

It is pertinent to note that Lui Mei-yi pleaded guilty to the three acts of trafficking involved in the Sham Shui Po drugs, the drugs in her handbag and the drugs which were found at her home, resulting, as I say, in 9.994 kilogrammes of mixture and 6.025 kilogrammes of ketamine. She received a sentence of 16 years’ imprisonment.

The way in which this sentence was calculated is clear from the reasons of the judge who sentenced her. The approach adopted was that the sentencing judge came to the view that a proper starting point for the quantity of ketamine was 23 years. The judge then added an extra year for what I might call, in shorthand, the international element, which gave a starting point of 24 years. He applied a 33 per cent discount to that.

The sentencing problem in relation to Lam Hing-chit is different in two major respects. First of all, as I have already indicated, not only was he involved in the act of trafficking for which Lui Mei-yi received a discounted sentence of 16 years, but he was manifestly active in a good deal more trafficking in ketamine in the course of and in furtherance of the conspiracy of which he has been found guilty, rather than that which was the basis of the plea of Ms Lui.

The second problem is that Lam Hing-chit is presently serving a term of imprisonment for trafficking in dangerous drugs. Plainly, the sentence for the conduct involved in this case must, on the guidelines to which I will shortly refer, be a very severe one. But if the sentence which I will shortly impose was to be fully consecutive to the sentences which Lam Hing-chit is presently imprisoned, the overall result would be what is sometimes characterised as a crushing result. Even though, in my judgment, he would richly deserve every day of the sentence which I think is appropriate for this specific case, it would be, taking things as a whole, unjust to impose a wholly consecutive sentence.

There is abundant authority on the appropriate sentence for trafficking in ketamine. In Secretary for Justice v Hii Siew Cheng [2009] 1 HKLD 1, the Court of Appeal laid down guidelines for trafficking in ketamine. The danger to the individual who ingests ketamine was outlined in depressing detail by the Court of Appeal in that decision.

On any view, as revealed in the decision of the Court of Appeal, both the short-term and long-term consequences of the ingestion of ketamine are potentially very serious indeed. The harm can be disastrous to the individual and the consequences for the community which has to deal with a person who has ingested ketamine, particularly on a long-term basis, are also significant. The sentencing guidelines outlined in that case reflect those stark and depressing facts. There is a table given by the Court of Appeal but significantly, for our purposes, it provides for trafficking in over 1,000 grammes of ketamine, a sentence 14 years and upwards.

In HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, the Court of Appeal provided additional guidelines for cases involving the trafficking of more than 1,000 grammes of ketamine. The court held that the appropriate starting point for trafficking in 2,000 grammes or 3,000 grammes of ketamine, should be no less than imprisonment for 18 years and 20 years respectively. Where more than 3,000 grammes of ketamine was involved, the starting point could exceed 20 years.

Although the increase in sentence should not be proportional to the increase in drug quantity and it would be for the court to pass such sentence as was appropriate in the circumstances of this particular case, that was the point， as I understand it, that Mr Poon was making to me in his submissions today.

Sentences for the unlawful trafficking in larger quantities of ketamine were further considered by the Court of Appeal in HKSAR v Chow Yau Ching [2014] 2 HKLRD 639. In that case, the Court of Appeal reaffirmed what had been said in HKSAR v Sin Chung Kin [2013] 1 HKLRD 627 to which I have made reference. Barnes J for the Court of Appeal observed, in relation to the decision of the Court of Appeal in HKSAR v Sin Chung Kin [2013] 1 HKLRD 627:

“The Court of Appeal did not raise the sentencing guidelines in Sin Chung Kin. It was only because of the lack of further elaboration in Secretary for Justice v Hii Siew Cheng on the appropriate starting point for trafficking in over 1,000 grammes of ketamine that the Court of Appeal, having considered the rates of enhancement to the starting point for trafficking in larger quantities of drugs such as heroin and ‘Ice’, made the observation that the appropriate starting point for trafficking in 2,000 and 3,000 grammes of ketamine should respectively be no less than 18 years and 20 years.”

The foregoing decisions all concern trafficking in ketamine. The problem faced in this case is that the crime on the indictment is not trafficking but conspiracy to unlawful trafficking in ketamine. The essence of what must be punished in a conspiracy is the act of agreement. That is the essential feature of the offence of conspiracy, the agreement to participate in organised criminal activity.

In Tyler v R; R v Chalmers (2007) 173 A Crim R458, the New South Wales Court of Criminal Appeal held that while it is important to identify the role of the conspiracy, sight must not be lost of the fact that it is a conspiracy and that the conspirator has agreed to participate in it. The court observed:

“Identifying the role of the participant by a reference to his position in the organisational hierarchy is a very different proposition from isolating the precise physical acts that can be attributed to the particular offender and selecting the punishment by reference solely to those isolated acts. It would be quite artificial and contrary to the very concept of a conspiracy to dissect with precision the physical act of each of the conspirators and to sentence that conspirator for these acts alone. That would be a negation of the complex interconnection between the various participants and the organisational nature of the conspiracy. It would represent too literal an application of the decision to identify the role of any participant as a relevant factor in the sentencing exercise.”

The court in Tyler v R; R v Chalmers (2007) 173 A Crim R458 qualified those observations as follows:

"That is not to say that the physical acts of the offender whose sentence is under consideration are irrelevant. They are relevant as one part of the complex tapestry (see R v Nguyen (2005) 157 A Crim R 80 at [102]).”

It is perhaps worthy of note that the complex interconnection between the various participants in Tyler v R; R v Chalmers (2007) 173 A Crim R458 is substantially greater than the conspiracy in the instant case. Nevertheless, the points made by the Court of Criminal Appeal are pertinent to the instant case.

Allied to the notion of the role of a conspirator in the conspiracy is the scope of the conspiracy. In my judgment, the role of the conspirator has to be judged against the scope of the conspiracy. Further, while it is wholly appropriate to look at the acts perpetrated by the conspirator in such a conspiracy to unlawfully traffic, the actual acts of trafficking, it is appropriate to remember that the conspirator is to be punished for what he agreed to do.

In relation to Lam Hing-chit, it is proved, on the basis of the jury verdict, that he was an important player in a conspiracy which involved retail distribution and the importation of drugs from the mainland. He was involved in the storage of drugs. In this regard, it is plain from the verdict of the jury that his activities were the product of his agreement with his fellow conspirators to undertake those activities.

He was also involved in the process of retail distribution, although as I say, it is very difficult to quantify quite how much ketamine was trafficked in this way. It is fundamental that a sentencing judge may not take facts into account in a way which is adverse to the interests of the person to be sentenced, unless those facts have been proved beyond reasonable doubt.

I am not sure how much was trafficked, other than that which is directly proved arising out of Ms Lui’s case. But I am sure that the accused was an active and central player in the retail distribution of drugs. I am also sure that at least on one occasion, he agreed to import ketamine from the mainland and the delivery of the drugs in Sham Shui Po is a manifestation of that.

For that, there is an objective measure of quite how much ketamine was trafficked. I cannot be sure as to the quantity which may have been trafficked on the other occasion referred to by Ms Lui. I am sure that it was part of the conspiracy to which Lam Hing-chit was a party, that there were other occasions.

In that regard, he can only be sentenced for the agreement. I am sure that the conspiracy was an active and continuing one at the time of Lui Mei-yi’s arrest. It is possible that the conspiracy continued after that but I am not sure about that and that does not form part of the sentence that I propose to pass on Lam Hing-chit.

This is not a case whereby the conspiracy was, as it were, nipped in the bud and little or nothing was carried out as a result of the unlawful agreement. This is clearly a case where the unlawful agreement was entered into and had been executed and was being executed at the time of Ms Lui’s arrest.

There is an international element to this case. In relation to the assistance provided by our appellate courts, there is guidance for the approach to take when the active trafficking involves drugs across Hong Kong’s borders. The most recent iteration of that specific guidance may be seen in HKSAR v Chung Ping Kun [2014] 6 HKL 106.

In that case, the Court of Appeal suggested, for quantities between 500 grammes and 1 kilogramme of drugs, such as cocaine, brought across Hong Kong’s border, an enhancement of between 1 and 2 years would be justified to reflect the fact that the drug the subject of the charge has been brought across our borders. This is a guideline directly applicable to trafficking but, in principle, it seems to me that a conspiracy which involves, amongst other things, an agreement to carry drugs across border is an aggravating factor just as much for a conspiracy to traffic as it is for trafficking.

The conspiracy in the present case has many facets and it is not to diminish the aggravating factor of an agreement to bring drugs across our borders by saying that this part of the agreement was but one facet of the agreement. I propose to adjust the sentence in a manner which is consistent with the guidelines for trafficking. The starting point which I will shortly declare includes an enhancement of about 1 year for that component in the conspiracy which involves bringing drugs from the mainland to Hong Kong.

Nevertheless, at the levels of sentence which would be appropriate in this case, any distinctions there might be between a conspiracy to traffic and actual trafficking are hardly meaningful.

Further, as has been observed in the decisions of the Court of Appeal in relation to sentence for trafficking in ketamine in very large amounts, the sentences of over 1 kilogramme of ketamine should not exceed 14 years in a direct mathematical relationship according to the weight of ketamine, the subject of the indictment in such a case. That approach is also appropriate in cases of conspiracy to traffic.

This is a serious case. It merits serious punishment. The conspiracy was interrupted in quite an unexpected way. Some transport workers became suspicious as the result of persistent calls by Fu Chai to them, pressing for delivery. The effect of their evidence was that caused them to look at the package involved and as a result, the police were called and a very neat and well-organised undercover operation took place thereafter. An important feature of the undercover operation was how quickly and effectively it was organised. It had to be.

The sentence I impose takes account of the role of Lam Hing-chit and that, in the course of the conspiracy, he was actively involved in clearly established quantities of dangerous drugs. While I am sure he trafficked in other drugs, the level of sentence which would be appropriate gets so large as to be unreal. I cannot sentence for unidentified drugs but I do sentence for the agreement that was active and continuing. Overall, I think a sentence of 26 years’ imprisonment would be appropriate for the conduct of Lam Hing-chit in this conspiracy.

However, as I have already alluded, I need to fix a sentence which takes account of the current incarceration of Mr Lam. It would be, in my view, so severely crushing to impose a purely consecutive sentence because that would result in a sentence of something of the order of 35 years’ imprisonment. As I have indicated, Lam Hing-chit richly deserves every moment of the 26 years for the present conspiracy, but other considerations are highly relevant.

Section 68 of the Criminal Procedure Ordinance provides that where the court sentences a person to undergo a term of imprisonment for an offence and such person is already undergoing or is at the same time sentenced to undergo imprisonment for another offence, it shall be lawful for the court to direct that such imprisonment shall commence at any time or at the expiration of the term of imprisonment which the person is then undergoing.

Accordingly, I order that Lam Hing-chit be imprisoned for 26 years and that sentence is to be concurrent with the sentences he is currently serving to the extent that this sentence is to commence 2 years after the commencement of the sentences which Lam Hing-chit is currently serving, and that is the order of the court.