HKSAR v. Lam Chiu Mo

HCCC349/2017

[2018] HKCFI 2305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 349 OF 2017

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

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COURT:

The accused was convicted after trial of trafficking in a dangerous drug. The 1st count on the indictment alleges that on 28 April 2017, at an address in Canton Road in Mong Kok, the accused trafficked in 15.9 grammes of a solid containing 15.1 grammes of cocaine. The 2nd count on the indictment alleges that on 29 April 2017, at an address in Tuen Mun, the accused trafficked in 176.2 grammes of a solid containing 166.2 grammes of cocaine.

The facts of the case are relatively simple. On 28 April 2017, shortly before 11 pm, the accused was seen outside a shopping centre in Tai Kok Tsui. He was sitting in his stationary car. A man came to the passenger side door, put his hand in the open window of that door and then left. Customs officers were a short distance behind this vehicle and one of them attempted to intercept the man who came to the door of the car in which the accused was sitting. He was unsuccessful in this endeavour.

The accused then drove his car for a short distance coming to a stop at an address in Canton Road. The Customs officers followed and pulled up behind him. They approached his car and indicated they wished to conduct a search. A quantity of cocaine was in the vehicle of the accused was found by the officers. That quantity was the subject of Count 1 on the indictment. There is a dispute as to what the accused said following his arrest and caution but both the version given by the Customs and the accused amount to the exercise of a right to remain silent.

The address of the residence of the accused was obtained. Again, there is a dispute about this but the officers took the accused in custody to an address in Tuen Mun which, at trial, it became common ground was his residence. A search was conducted and the quantity of cocaine averred in the 2nd count in the indictment was discovered in plastic containers in the kitchen of the accused.

In addition, working electronic scales and a substantial number of plastic bags of three different sizes were found in his residence. One of the particular sizes of plastic bags matched exactly the bag in which the cocaine found in the car in Canton Road.

It is an agreed fact that the cocaine in question had a retail value of something of the order of $154,000.

The accused was born in July 1978 and is now aged 40. He is Hong Kong born and bred and holds an identity card. He was married and is now divorced. He has a son aged 13 and he supports him financially. I am told and I accept that the accused sees his son regularly and takes his obligations in that regard seriously. At trial he asserted he was a transport worker earning less than $20,000 a month although sometimes he earned as much as $30,000 a month.

The criminal record of the accused reveals a series of five convictions for managing a vice establishment. It is significant that those offences occurred as long ago as between 1998 and 2001. In 2005, the accused was convicted of two charges of possession of dangerous drugs, contrary to Section 8 of the Dangerous Drugs Ordinance. He was sentenced to an order of community service for the dangerous drugs offences which tells me something about the level of seriousness of those offences.

Cocaine is regarded as a drug which is essentially at the same level of danger and seriousness to individuals and the community as heroin and methamphetamine hydrochloride or, as it is more commonly known, ice. Cocaine is addictive and it is well recognised that the effects of its use over time can have serious consequences for the individual. Those consequences do not affect just the individual. They are capable of imposing a drain on the community’s resources in areas such as hospital treatment and, where necessary, rehabilitation.

The maximum penalty provided for this offence by Section 4 of the Dangerous Drugs Ordinance is a fine of $5 million and to imprisonment for life. Obviously that penalty is appropriate for the worst kind of case. The approach of our courts is to provide sentencing guidelines which are related to the narcotic content of the drug in question. The object of this is to provide a measure of consistency as between those who are convicted of trafficking in dangerous drugs. The guidelines are not role-specific. By comparison, the kinds of activities contemplated by the definition of trafficking in the Dangerous Drugs Ordinance encompasses a wide range of activities.

There is no direct evidence as to the role of the accused in this case but I think that the clear implication of the verdict of the jury is that the accused was storing and packaging dangerous drugs. For the purpose of sentence I am satisfied beyond reasonable doubt that the proper basis for sentence is to approach it upon the basis that the accused was a storeman and packager of the drugs.

So far as the activities in the vehicle are concerned, I am not able to say with the same degree of certainty precisely what the accused was doing. He may have been receiving drugs. He may have been delivering drugs. What I can say with certainty is that he possessed those drugs for unlawful trafficking.

The source of the guidelines in relation to the trafficking of cocaine starts with the decision of Court of Appeal of Hong Kong in R v Lau Tak Ming & Others [1990] 2 HKLR 370. In AG v Rojas [1994] 1 HKC 342 and Queen v Chang Chen Liu Sa [1995] 1 HKCLR 69, the Court of Appeal declared that the guidelines in HKSAR v Lau Tak Ming are appropriate for cocaine. The correctness of these guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.

The guidelines for unlawful trafficking of cocaine relevant to the quantity of narcotic in the 1st count is for quantities between 10 grammes and 50 grammes and that would ordinarily attract a sentence of between 5 and 8 years’ imprisonment. The guidelines in relation to the quantity in Count 2 is for quantities between 50 grammes and 200 grammes and that would ordinarily attract a sentence of somewhere between 8 and 12 years.

There is an argument that whatever the activity being undertaken in Canton Road, it was entirely separate from the storage and packing activities at the residence of the accused in Tuen Mun. On the basis of that argument it would conceivably be the appropriate approach to sentencing would be to order the sentences for Count 1 and Count 2 to run consecutively. However, I think the more just approach is to add the cocaine in both counts together but fractionally stiffen the sentence that might otherwise have been appropriate for that total to represent the separate conduct.

On that basis, I am dealing with just over 180 grammes of cocaine. While I cannot say that the accused is a person of previous good character, I do take into account that he is a person who has accepted responsibility for his son, both financially and otherwise, and that is to his credit. Rather than getting obsessed with accounting, I propose to impose the same sentence on both counts and order that they run concurrently.

Doing the best I can to provide combined justice and mercy the order of the court is that in relation to both counts you will be in prison for 11 years and 2 months.