HKSAR v. Lam Kwok Sang

HCCC 145/2018

[2018] HKCFI 2799

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 145 OF 2018

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

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COURT:

The defendant had pleaded guilty to two counts. He had pleaded guilty to trafficking in a dangerous drug contrary to section 4(1)(a) and 3 of the dangerous drugs ordinance Cap 134. In the charge he admits to unlawfully trafficking in dangerous drugs on 27 July 2017 at Room 2606, Lok Wong House, Tsz Lok Estate, Wong Tai Sin, Kowloon, namely 473.5 grammes of a solid containing 246.06 grammes of ketamine, 1.39 grammes of a crystalline solid containing 1.38 grammes of methamphetamine hydrochloride and 14.40 grammes of a solid containing 13.50 grammes of cocaine.

The second charge the defendant faces is wilfully obstructing a police officer contrary to section 36(b) of the Offences against the Person Ordinance, Cap 212 and he pleads guilty to obstructing a police officer in the execution of his duty inside Room 2606.

The facts are straightforward. The police executed a search warrant at Room 2606 at about 3 pm on 27 July 2017. When they entered the bedroom, the defendant was sitting on the bed. He tried to leave, he started to resist the police and struggled with several police officers including the victim of charge 2. They fell onto the bed during the struggle and the victim suffered abrasions and tenderness over his neck and right hand during the struggle. The defendant also managed to throw a bag of ketamine out of his bedroom door which burst when it landed on the floor. The drugs spilled all over the floor which the police then had to sweep up. It was subsequently found to be 85.9 grammes of a solid containing 45.3 grammes of ketamine. They also found boxes and plastic bags containing all the drugs of charge 1.

All the drugs had an estimated street value of approximately $164,599. They also found paraphernalia associated with drug packing including empty resealable plastic bags, an electronic scale and one plastic bag sealer. They also found glass bottles that had been modified and could be used for inhaling drugs.

Under caution, the defendant had admitted that all the dangerous drugs were his and he purchased them for selling. He would sell them when he had prepared them. He elaborated further under caution in a video-recorded interview not long later where he said that he had purchased the drugs to sell but the methamphetamine hydrochloride, commonly known as 'Ice' was for his own personal consumption. He had bought the drugs from an unknown supplier in his housing estate. He had, two weeks earlier, paid $180,000 for one kilo of ketamine. However, he had bought it on credit and was required to pay after he sold the drugs. He would pack the drugs into small transparent resealable plastic bags to sell, he had already sold half of his purchase and sold them for $1,000 per transparent bag which weighed around 3 grammes.

He had also bought the cocaine 24 grammes of cocaine for $10,000 some two weeks prior to his arrest. He then claimed, in his video-recorded interview, that some of the cocaine was for sale and some was for his own consumption. He would pack them into bags weighing around 0.2 grammes each and sold them for $300 each. He already had sold some of the cocaine before his arrest. The police found all of the cocaine divided into 71 small resealable transparent plastic bags, clearly ready for sale. He would use the 'Ice' bottles or modified glass bottles as inhaling devices to inhale 'Ice' and he had been a drug addict for over 10 years.

The defendant is now 27 years old and he was born in China, coming to Hong Kong in 1999. I have been told in mitigation that he was only educated up until Form 3 level and was at the time of his arrest working as a construction site worker. I note, however, in his own mitigation letter he attributes these offenses amongst other reasons to being unemployed. I have taken the rest of his letter into account. He is married to a wife who lives in Mainland China whilst he is living with his parents and brothers in Hong Kong.

He is not a man with a clear record. He has one previous similar conviction. In October 2013, he was sentenced to 4 years' imprisonment for trafficking in dangerous drugs in the District Court. I am told today he pleaded guilty to trafficking 50 grammes of ketamine and was released after serving that sentence in February 2016. Ms Lai has said all she can in mitigation on behalf of the defendant. His best mitigation is his plea of guilty.

He says that he has been addicted to 'Ice' for 10 years and was a heavy 'Ice' abuser, consuming 1.8 grammes each day which according to experts is an extremely high amount to consume daily. She says that the 'Ice' seized, 1.38 grammes was wholly for his own consumption. I note there were 'Ice' pipes found in his home for the inhalation of that drug. The prosecution remain neutral on this mitigation. Ms Lai goes on to submit that he is also an abuser of cocaine, consuming 1 gramme a day and half of the cocaine seized, which would be 6.75 grammes, was for his own consumption and the balance for sale. Prosecution do not accept this mitigation. I do not accept this mitigation either.

Despite the fact his urine test conducted several days after his arrest when he was remanded in custody tested positive for 'Ice' and cocaine, I note the quantity of cocaine was packed equally in 71 bags and kept together in a metal box on their own. I note he initially told the police in his video-recorded interview that the ketamine and cocaine were for sale and the 'Ice' was for his own consumption. Later in the same interview, he said that half of the cocaine was for self-consumption yet the cocaine was clearly all packed and ready for sale for $300 a bag. There is no indication that any or half of it was for his self-consumption by way of its packaging. The defendant elected not to give evidence; conduct a Newton inquiry.

The second reason I do not accept this mitigation is that half of the cocaine would be 6.7 grammes of a total of 260.94 grammes of narcotics. If I added the 'Ice' to the cocaine, the defendant would be claiming 8.13 grammes of a total of 260.94 grammes was for his own consumption. A discount in sentence to reflect the element of self-consumption should only be given serious consideration when the court accepts that a significant proportion of the dangerous drugs was for self-consumption. I have taken into account the authority of HKSAR v Liu Ming Sze, CACC 103 of 2016 where the Court of Appeal made this very clear. A sentencing in court should be careful and slow to entertain such a discount of sentence. In this case, even defence counsel accepts that not a significant proportion of the dangerous drugs is claimed to be for self-consumption.

Here we have three types of drugs, what can only be describe as a cocktail of drugs. In the case of HKSAR v Yip Wai Yin, CACC 80/2003, the Court of Appeal there stated that for sentencing in different quantities of drugs, a combined approach would usually be correct in taking a global view. This approach is often preferred and produces the more realistic sentence. In the combined approach, the court looks at the overall quantity of drugs rather than the individual parcels. The methodology of this combined approach is to first calculate the applicable sentence for the more serious drug and then make an upward adjustment to take into account significant quantities of other drugs. In the case of HKSAR v Chan Yuk Leong, CACC 318/2013, the Court of Appeal there also held that the court should take the most serious drug and adjust it upwards for other drugs. The court there discussed three means of cross-checking whether the sentence was manifestly excessive. The first test was the absurdity test, the second test was the conversion test and the third test was the ratio test. Ms Lai, for the defendant, has calculated that for the absurdity test if all the drugs and not including the 'Ice' were taken to be ketamine, the starting point should be 8 years and 6 months compared to if all the drugs were taken to be cocaine, the starting point would be 12 years and 11 months. She has calculated according to the conversion test, the starting point should be 8 years and 9 months. According to the ratio test, the starting point should be 8 years and 6 months. I do stress that these results do not take into account the quantity of 'Ice'. I have also referred myself to several other authorities dealing with cocktail of drugs including HKSAR v Leung Chun Pong [2009] 6 HKC 672 as well as HKSAR v Wong Kin Kau [2010] 4 HKC 443.

I have considered the sentencing guidelines for each different type of drugs. If I were to reject the mitigation that the 'Ice' was for self-consumption, then I would need to consider the starting point for trafficking in 'Ice'. The sentencing guidelines in 'Ice' is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HLRD 691, and the starting point for trafficking up to 10 grammes is 3 to 7 years' imprisonment. Therefore the starting point for trafficking in 1.3 grammes of 'Ice' is 3 years and 4 to 5 months. If I were to accept the mitigation that the 'Ice' was for self-consumption, and I say here that I do, then the defendant would still, in my view, be looking at a custodial sentence if he was charged with possession of 'Ice'. In addition, in this scenario where there are other types of drugs present and he is an active trafficker, then the latent risk is present and high. I do not accept the mitigation that I should ignore the 'Ice' completely because it is only 1.38 grammes. If I were to sentence the defendant for possession of this 'Ice', I would still be considering a starting point in the region of 12 months' imprisonment.

As far as the cocaine is concerned, the sentencing guidelines for that derived from The Queen v Lau Tak Ming [1992] 2HKLR 370. The starting point for trafficking between 10 to 50 grammes is 5 to 8 years' imprisonment and the starting point for the total amount of cocaine in this case alone, 13.5 grammes, is 5 years and 3 months' imprisonment.

As far as the ketamine is concerned, according to the Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the starting point for trafficking in between 50 to 300 grammes is 6 to 9 years' imprisonment and the starting point for the total amount of ketamine in this case, 246.06 grammes is 8 years and 4 months.

If the individual approach was taken as opposed to the combined approach, the individual sentences or starting point for all three types of drugs added together would make a total of 16 years and 11 months if they were considered together. I add that that would include trafficking in that amount of 'Ice'. That would far exceed the criminality of the defendant's crime. That is why the combined approach is the more fair approach.

Although 'Ice' is the more or serious drug in terms of potency, the vast majority of the narcotics in this case is ketamine, over 90 per cent of the total quantity and the starting point is over double that for the 'Ice' here. It makes sense that I take ketamine as the base for sentencing. Moreover, since I accept the mitigation that the 'Ice' was for self-consumption, all the more reason for taking ketamine as the base for sentencing and ignore the sentencing guidelines for trafficking 'Ice'. I also take into account the fact that there were different types of drugs together, readily accessible to an addict and that a mixture of these drugs taken by addict can be devastating.

After considering the authorities and the mitigation that I have heard, I would take starting point for that much ketamine to be 8 years and 4 months. And I find it appropriate to adjust the sentence upwards to take into account the other drugs that is 5 months more for the cocaine. This would lead to a higher overall starting point of 8 years and 9 months. I am sure this is a realistic and fair reflection of the quantities of ketamine and cocaine. I will add to that starting point another 3 months to reflect the quantity of 'Ice'. If I had sentenced the defendant separately to possession of the 'Ice', I would have taken a starting point of 12 months and reduced that to 8 months after plea. I would have made 3 months of that 8 months sentence consecutive to the sentence for trafficking just cocaine and ketamine, therefore I find an appropriate overall starting point for Charge 1 to be 9 years.

I have considered the facts of Charge 2 and I take into account the police officer did not suffer any serious injury. However, the defendant also wilfully obstructed the police by throwing a bag of ketamine on the floor knowing it would likely burst. The task of carefully sweeping up that ketamine would have been onerous. This offense will attract a custodial sentence and I find 6 months' imprisonment to be an appropriate starting point.

The defendant has pleaded guilty which will attract a reduction of one-third from his sentence. After that deduction is applied, the defendant is sentenced as follows. For Charge 1, the defendant is sentenced to 6 years' imprisonment. Charge 2, the defendant is sentenced to 4 months' imprisonment. After taking into account the totality principle, I order that 1 month of Charge 2 be served consecutively to Charge 1 and the balance concurrently, therefore the defendant will serve a 6 year and 1 month term of imprisonment.