HKSAR v. Kan Lai Laam

HCCC 239/2018

[2019] HKCFI 292

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 239 OF 2018

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

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COURT: Defendant, please stand.

The defendant has admitted and pleaded guilty to one count of trafficking in dangerous drugs, namely 93.13 grammes of crystalline solid containing 91.76 grammes of methamphetamine hydrochloride; 0.25 gramme of a powder containing 0.17 gramme of methamphetamine hydrochloride; 0.85 gramme of a powder containing of 25 milligrammes of methamphetamine; 3 tablets containing one milligramme of methamphetamine; 7.42 grammes of a solid containing 7.14 grammes of cocaine; 15.67 grammes of cannabis in herbal form; 54 hand-rolled cigarettes containing 8.56 grammes of cannabis in herbal form; 0.57 gramme of a solid containing 0.50 gramme of chloroethcathinone; 0.62 gramme of a powder containing 0.22 gramme of chloroethcathinone; 0.33 grammes of a powder containing 0.17 gramme of 3,4-methylenedioxymethamphetamine.

The facts were that the defendant was entering the building in Mong Kok where she lived and she was stopped by police officers. She had four keys. She told the police that she lived on the third floor of the rear portion of the building.

Using the keys found on the defendant, police gained entry to the flat and inside a locked drawer, opened by one of the keys found on the defendant, were the drugs which are the subject matter of the charge.

All these drugs were packaged in separate plastic bags and also found with the drugs were a large amount of empty resealable plastic bags and an electronic scale. Also found in that drawer were 54 hand-rolled cigarettes containing cannabis in herbal form. So, obviously, from the content found in that locked drawer, all these drugs were ready for dispersion amongst the community.

Under caution, the defendant claimed that the drugs were for her self-consumption.

Also found in the defendant’s wallet in the cabinet in the room was cash of HK$21,870.

The defendant claimed, under video-recorded interview, that the drugs were brought to her by a friend and it was the first time that this friend had brought her “Ice”. And that the money that was found in her wallet, she was intending to use it for payment of “Ice” and cocaine a few days later, and that money was borrowed from friends. She said she needed drugs to cure her back pain and headache.

The estimated retail value of the cocaine was in the region of $6,826. The retail value for the “Ice” was estimated to be around $31,002. And for the herbal cannabis, the estimated retail value was about $5,403.

Mr Yu, on behalf of the defendant, said that the defendant is aged 46 and studied only up to Form 1 level in China. More importantly, the defendant has had no previous convictions in dangerous drugs. She has six previous convictions, but they were not related to drugs.

Her background, Mr Yu detailed, was that she had met her husband, who was a Hong Kong citizen, in China and they had gotten married and then she came to Hong Kong in 2005. However, the marriage broke down and she divorced her husband. She continued to find work in Hong Kong to raise her daughter and support her parents. In 2010, she met and married her second husband, who unfortunately passed away in 2014.

Mr Yu submitted that all during these times she never sought to go on the government CSSA and be dependent on government assistance. Instead, she found several jobs in order to help her ailing husband and also to raise her daughter.

She eventually worked in a massage parlour and thus unfortunately was the reason for her commission of her previous convictions. Mr Yu said that in the years leading up to the commission of this present offence, she had spent a lot of money on medical expenses for her father. Also, that while she was working in the massage parlour, she began to have headaches and pain, and she was introduced to “Ice”.

She befriended a person called “Keung Gor”, who sold her “Ice” and they became close. She said, through Mr Yu, that it was this person, Keung Gor, who asked her to keep the drugs for him and he also allowed the defendant to consume what she wanted and pay him at the end. Thus, that explains the presence of the drugs in her flat.

Mr Yu submitted the actual mitigating factor in this case is her full cooperation with the police and also in admitting to the possession of these drugs, and also her early plea of guilty.

Mr Yu submitted that in sentencing I ought to apply the conversion test, and I agree. The majority of the drugs was the methamphetamine hydrochloride, the “Ice”, which is 91.76 grammes, which is the largest amount of “Ice” and then followed by the cocaine, which was 7.14 grammes. For the “Ice” found, there were also smaller amounts like 0.17 gramme and also 26 milligrammes. So adding up the methamphetamine and the cocaine found, it would give us around 99.07 grammes. As far as the herbal cannabis is concerned, compared to these more serious drugs, the amount is negligible.

As pointed out by Mr Yu, the relevant sentencing guidelines would be in Tam Yi Chun in 2014 [2014] 4 HKLRD 27, where the Court of Appeal suggested that for trafficking in between 70 to 300 grammes of “Ice” would merit a starting point sentence of between 11 to 15 years.

Now, Mr Yu also submitted that I should consider giving a discount for the defendant’s self-consumption. I said to Mr Yu that I am not prepared to consider that the defendant would keep a significant portion of the drugs found for her own consumption and that he is welcome to call evidence. Mr Yu declined the invitation.

Mr Yu also submitted that in the case of HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572, that the Court of Appeal had followed the guidance laid down in the case of Chow Chun Sang in 2012 [2012] 2 HKLRD 1121, where it was suggested that the discount should fall between 10 per cent and 25 per cent of the starting point.

As Mr Cheung had very helpfully submitted, in the very recent case of the Court of Appeal in HKSAR v Choi Chun-wo, reported at [2018] HKCA 384, the Court of Appeal made clear what the situation was for self-consumption discount. Certainly, the general principle which were set out in that judgment bears repeating.

At paragraph 28, where the Court of Appeal said on the issue of self-consumption, that:

“What needs to be appreciated is that the key authority on this subject is Wong Suet Hau which was addressing the situation where a claim that some of the drugs were intended for self-consumption could be shown to be true but the quantity of such drugs were not readily discernible. It was held that if it is claimed that a “significant proportion” of the drugs was intended for the consumption of the defendant and not for trafficking, the court was obliged to address the issue, as it may well make a difference to sentence.”

Paragraph 29, the Court of Appeal went on to say that:

“It is in such circumstances, that Chow Chun Sang suggested a range of discount for self-consumption between 10% and 25%. However, as emphasised in HKSAR v Kong Tat Lung [2018] 5 HKLRD 635, this range of discount is only applicable when the threshold of “significant proportion” has been met. When a less than significant proportion of unquantifiable drugs is accepted as being for the defendant’s own consumption then a sentencing court has a discretion to award a discount from the starting point taken for sentence to reflect this fact, as explained in Liu Ming Sze, at paragraphs 28 and 29.”

Now, taking into account the facts in this case, the fact that the defendant was in the straitened financial circumstances she was in and the drugs being kept in the way it was in her locked drawer and separated into small packages; the cocktail of drugs that were found in the drawer; the weighing scale, etc, I am not prepared to accept that the methamphetamine hydrochloride, that a large substantial amount was for her, or a significant proportion was for her own-consumption.

I would therefore sentence in the following way. I consider that an 11½ year starting point is appropriate in this case. I will reduce it to 11 years to take into account the defendant’s self-consumption.

I would give the defendant the usual discount of one-third off of that, so she will go to prison for 7 years and 4 months.