HKSAR v. Lam Chung Ming

HCCC 69/2018

[2018] HKCFI 1511

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 69 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 in this matter was charged with one count of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded not guilty and on 11 June of this year after trial before me was acquitted of the charge of trafficking in a dangerous drug but convicted of the alternative charge of possession of a dangerous drug.

The defendant was remanded in custody pending the preparation of a drug addiction treatment centre report as is required by section 54A of the Dangerous Drugs Ordinance, Chapter 134. That report has now been provided.

The background to the matter is this. It was the prosecution’s case in the trial that late in the evening of 31 August 2017, two police officers were on patrol in plainclothes outside the Shek Wai House on the Shek Lei (I) Estate in Kwai Chung. They observed a man walking from the direction of Shek Yi House towards Shek Wai House. His conduct attracted their attention and aroused their suspicions. He was intercepted and searched. That man was the defendant.

That search revealed that inside the right front pocket of the shorts he was wearing was a plastic bag which itself contained another transparent resealable plastic bag inside of which was yet another resealable plastic bag containing a transparent crystalline substance. The police officers suspected that that substance was a dangerous drug. The defendant was arrested and cautioned for the offence of trafficking in a dangerous drug. In response to that caution, the defendant replied, “I have nothing to say.” That exercise of his right to remain silent was maintained throughout the course of the police investigations thereafter.

The police officers’ initial suspicions proved to be correct, and the crystalline solid was upon analysis determined to be 24 point one grammes of a crystalline solid containing 23.6 grammes of methamphetamine hydrochloride. This drug had an estimated street value of $10,000 or thereabouts.

The defendant chose not to give evidence in the trial. The defence case as put in the course of cross-examination was that the dangerous drug had not been found in his pocket but in a nearby flowerbed. This defence was plainly rejected by the jury’s verdict. The verdict of possession of dangerous drugs in the circumstances is an obvious decision by the jury not to proceed to convict on the possession for the purposes of trafficking charge on the basis that there was no direct evidence of an intention on his part to traffic in those drugs. Those are matters not necessarily relevant to the exercise of the sentencing process but are by way of background.

The defendant is now aged 57 years and was born in mainland China. Prior to his arrest, he lived in a public housing estate in Tsuen Wan in the New Territories. He has very limited education, and according to the DATC report, this was to Grade 3 level on the mainland. He came to Hong Kong in 1994 and apparently had reasonably stable and steady employment until 1998 when he suffered or he sustained a serious head injury in an industrial accident. The DATC report also reveals that at some point in time, he has previously had a stroke and received treatment for that at Queen Mary Hospital.

Prior to the arrest of the defendant, he was unemployed and in receipt of limited financial assistance from the Social Welfare Department. The DATC reports and Mr Yuen on his behalf today confirms that at the time of his arrest, he was an abuser of dangerous drugs and, in particular, the dangerous drug methamphetamine hydrochloride. His use and abuse of this dangerous drug appears to have come late in his life. He has no previous conviction of any relevance and, in particular, none with respect to the possession or otherwise possession or use of dangerous drugs. From the DATC report, it appears that his introduction to the abuse of methamphetamine hydrochloride was as late as the year 2016. At that time and at the time of his arrest, he was using methamphetamine hydrochloride some two to three times a week.

As would be expected, subsequent to his arrest, he has been detained in custody, and as one would expect, by the date of his assessment under the DATC provisions, he was no longer regarded as suitable for treatment in a drug addiction treatment centre. The report indicates that by reason of the fact that he had been in custody for a period in excess of nine months he was no longer regarded to be a drug-addicted person. The consequence of that is that that option is no longer available in terms of how he should now be dealt with.

The Court of Appeal when considering the appropriate process that a sentencer should undertake when sentencing a defendant for the offence of possession of dangerous drugs is set out in the judgment of that court in HKSAR v Lee Chun Man in CACC 360 of 2014. The court when observing at paragraph 14 as to the appropriate course to adopt advised as follows:

“The law is clear that on a charge of simple possession the judge is obliged to adopt a three-stage approach to the assessment of sentence. This was set out by the Court of Appeal in HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405. It described the three steps at page 407 at F to H as being:

‘Step 1: The judge should normally determine a starting point of between 1 year to 18 months’ imprisonment.

Step 2: The starting point is increased or enhanced to take account of the latent risk factor in order to arrive at a total sentence. This will reflect the risk to society of the drugs being redistributed and finding their way into other hands apart from the offender’s. The latent risk will be determined from all the circumstances in any particular case, including of course the quantity of drugs possessed and the personal circumstances of the offender.

Step 3: The total sentence is then adjusted to take account of the mitigating factors, such as a guilty plea.’”

A little later on in that judgment, further guidance was provided at paragraph 16. I read as follows, dealing with step 2:

“Thus, the assessment of the risk is performed by determining whether the evidence allows of an inference to be drawn in the circumstances of that case before the court there is a real risk of dissemination of the dangerous drug. As to what factors are relevant to whether such an inference can be drawn was discussed by Stock JA, as he then was, in HKSAR v Mok Cho Tik [2001] 1 HKC 261. At page 267 D to E, he said:

‘The existence of the risk factor and degrees of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account is whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of the drugs. The full circumstances of the risk must be assessed.’”

Approaching the matter as I must from the point of those observations, I have indicated to Mr Yuen that in my opinion, as to step 1, the appropriate starting point for sentence in all of the circumstances given the quantity of methamphetamine hydrochloride is one of 18 months’ imprisonment.

As to step 2, I am satisfied in the circumstances of this case that there is a latent risk of dissemination. I can properly infer that from the following. The defendant is a person of very limited means. His income is entirely derived from social welfare payments. At the time of his arrest, those payments were less than $5,000 per month, and as I recall, he was required also to pay something of the order of $1,000 per month towards his assisted accommodation.

The quantity of the drugs likely to have been consumed by the defendant himself was by reason of the fact that he used two to three times per week limited. The fact that the defendant had in the order of $10,000 worth of drugs in his possession late in the evening a considerable distance from his home would also be a factor relevant to whether this inference could or should be drawn.

Mr Yuen quite properly points out that when the defendant’s premises were searched, no packaging or packaging equipment, scales or equipment for the use of dangerous drugs was found. Those are relevant considerations. However, the overriding impact as far as the drawing of inference is concerned, in my opinion, rests on the fact that this was a very valuable and substantial quantity of drugs far in excess of that which would ordinarily be used by him in his limited consumption. That combined with his significantly strained financial resources would clearly indicate that there is a latent risk of dissemination.

I have determined in the circumstances that the latent risk being such, it should enhance the starting point for sentence by way of 6 months. That would bring a starting point for sentence of 18 months together with 6 months of 24 months.

There are no circumstances or matters which would allow me to give the defendant any discount from that starting point. No offer to plead to possession of the dangerous drugs was made at any time, and in the circumstances, therefore the starting point of 24 years will be the sentence which I impose.

(Clarification re length of sentence)

COURT: The sentence of 24 months will be the sentence which I impose.