HKSAR v. Lee Tsz Kam

HCCC 127/2018

[2018] HKCFI 2308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 127 OF 2018

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

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COURT:

On 3 September 2017, at shortly before 3 am, police officers conducing an anti-dangerous drug operation intercepted Lee Tsz-kam on an estate in Tsing Yi. After the officers declared their identity to Mr Lee, he ran into a nearby shopping mall, but was eventually subdued by the officers.

Mr Lee was searched and a cigarette box was found in the right pocket of the trousers of Mr Lee. Inside the cigarette box there were two transparent resealable bags. They contained 26.9 grammes of a crystalline solid containing 26.9 grammes of methamphetamine hydrochloride. Methamphetamine hydrochloride is commonly known as ‘Ice’.

Mr Lee was arrested and cautioned. In answer to the caution he said, “‘Ah Shing’ told me to carry these dangerous drugs to give to someone. After it was done, I would be given $500 as a reward. I have not yet received the money yet.”

At the time of his arrest, the estimated retail value of the drugs seized from Mr Lee was $8,850.

On 16 April 2018, Mr Lee was committed for sentence on a charge of trafficking in 26.9 grammes of ‘Ice’.

Mr Lee is 38 and he was born in mainland China, but holds a Hong Kong identity card. He came here when he was 22. He received education to Form 1 in China and prior to his arrest, he had been employed as a decoration worker, earning about $5,000 per day.

He is addicted to ‘Ice’, having taken it for the last few years. The addiction is supported by the fact that I have been informed today that two days after his arrest, he tested positive in his urine for amphetamines.

Further, Mr Lee has a long history of criminal offences starting in 2002 and in that list are four convictions for possession of dangerous drugs. The other offences may be characterised as comparatively minor, with the highest prison sentence imposed being 9 months’ imprisonment.

The community of Hong Kong and, as a result the courts, have for many years taken a severe view of drug trafficking, particularly in relation to ‘Ice’. This drug has terrible consequences for the individual and if anyone can attest to that, it is the accused himself. If anyone, as I say, can attest to that, it is the defendant himself. It is a savagely addictive drug and ridding oneself of the addiction is, to say the least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to ‘Ice’ is fraught with instances of disappointment.

One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs. Further, the conduct of persons affected by ‘Ice’, both in private and perhaps more pertinently, in public, can be quite dangerous.

The view of the community and the courts is reflected in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including drugs, the subject of the charge in this case.

In relation to ‘Ice’, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The guideline suggested for the quantities involved in this present case is in relation to quantities of ‘Ice’ falling between the range of 10 grammes and 70 grammes, might attract a sentence of between 7 and 11 years’ imprisonment ([2014] 3 HKLRD 691, para 34).

Mr Lee has pleaded guilty at the earliest possible moment and it is therefore appropriate to discount the sentence which would otherwise have been appropriate, had he pleaded not guilty and gone to trial.

I have listened to the very helpful suggestions of Ms Chung for the accused and I also heard from Miss Wong for the prosecution. Ms Chung makes the point, and refers to a letter written by the accused in that context, that he is very remorseful for his conduct. She submits, and I accept, that the accused has learned a hard lesson through the process that he has gone through. That lesson will be more painful, I know, because of the sentence that it is my duty to pass in a little while.

One of the reasons I am able to readily accept what Ms Chung says about the accused is that this is, despite a long history of drug addiction, the first time he has faced a charge of trafficking in dangerous drugs.

Ms Chung submits that the accused possessed some of these drugs for his own consumption. In support of that proposition, she points to the long and unattractive history of possession of dangerous drugs charges, together with orders for incarceration in a drug addiction treatment centre.

Miss Wong correctly points to the fact that the accused, when arrested and cautioned, did not mention anything about the drugs being, in part, for his own consumption. I am satisfied that a proportion of the drugs were for his self-consumption, but I am not able to say with precision what that proportion is.

I propose to make a modest change to what might otherwise have been the sentence, for the starting point for the sentence of this man, to reflect the fact that some of the drugs were for his own consumption, but also taking into account, even if that were true, that there would be a latent risk that that portion might fall into the wrong hands.

On his own admission, it is clear that the role played by Mr Lee was that of a low level courier. While even the lowliest courier participates in the drugs trade, it would be preferable if the guidelines recognised this, but regrettably, they do not.

The guidelines eschew a strictly mathematical approach to sentence within the range of sentence appropriate under the guidelines. Ms Chung has very helpfully pointed out that if I were to apply a strictly mathematical approach, that the maths work out at a sentence of something of the order of 8 years and 2 months.

On the basis that I do not intend to apply a strictly mathematical approach to the starting point, and on the basis of a modest allowance for part of the drugs being for self-consumption, it seems to me that the starting point for sentence for this man, in the circumstances, would be 8 years. He is, of course, to receive a discount of one-third from that starting point.

I hope that while the accused has learned a bitter lesson, that he takes the opportunity accorded to him by this time away from drugs, to get himself clean and get himself on a path to a healthier and safer life when he comes out of prison.

At Mr Lee’s age, if he does not take this opportunity at this time, then the future could look fairly dark. I am told by Ms Chung that he has made a start on this and I realise that he will need an immense amount of self‑discipline to stay on that path.

Doing the best that I can to combine justice with mercy, I accord a discount of one-third from the starting point of 8 years. The order of this court is that you will go to prison for 5 years and 4 months.