HKSAR v. Lam Sze Wai

HCCC 283/2018

[2019] HKCFI 1202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 283 OF 2018

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

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COURT:

Mr Lam, you pleaded guilty to two counts of trafficking in dangerous drugs before the Eastern Magistrates’ Court on 3 September of 2018 and you have confirmed that plea today.

The Summary of Facts has been read out to you today and you have confirmed that those facts are true. In summary, they are as follows:

Count 1

On Count 1, you are charged with trafficking in 312 grammes of cocaine. That offence occurred on 3 June of 2017, when you had secured a room within the Fortune Metropolis Plaza in Hunghom as a base from which you packaged dangerous drugs.

On that day, you delivered cocaine to a 15-year-old boy, who was later to take the cocaine to the Wah Lai Estate where he was intercepted by the police. As a result of the assistance of that young man, the police were able to identify you as the person who transferred the 16 packets of cocaine to him. When you were subsequently arrested for Count 2 some seven months later, the boy identified you and your DNA was also matched to the paper in which the dangerous drugs were wrapped.

The estimated value of the cocaine under Count 1 was $497,882.

On Count 2, you were intercepted in the early hours of the morning of 16 January 2018, near Fa Yuen Street in Mong Kok. You were searched and the police found two transparent re‑sealable plastic bags, within one of which was a further 11 transparent re-sealable plastic bags containing 12.6 grammes of ketamine worth $8,240 and within the other was found a further seven transparent re-sealable plastic bags containing 7.84 grammes of ‘Ice’ worth $6,138.

On arrest, you claimed firstly that the cocaine under Count 1 was for your own consumption and that you had booked a hotel room in order to consume it. Mr Khosa maintains that you are an abuser of cocaine as you tested positive for cocaine when you were tested by the CSD on 19 January of 2018.

Later, in the same interview, you said you would sell whatever was left over to others, but of course that could not have referred to the cocaine you gave to the young boy as that was clearly for onward sale, as you accepted in the Summary of Facts. So that reference did not account for the fact that you had given the boy 312 grammes of cocaine contained within 16 separate packets, with a value of almost half a million Hong Kong dollars.

As for the drugs under Count 2, in interview, you said the ‘Ice’, all seven plastic bags, were for your own consumption, and in your video-recorded interview you said that you had bought them for $4,500. If you were referring to both types of drugs, then it would appear that you obtained something in the order of a two-thirds discount for buying in bulk. You told the police that you consumed 1 gramme of ‘Ice’ and 1 gramme of ketamine a day. You said the drugs found upon you would therefore have lasted one to two weeks.

You did not say that you were also abusing cocaine at the same time. If that were the case, which I doubt, you had a drug habit at street prices of some $30,000 plus per month but an income of, at best, 20,000 per month and realistically considerably less, as your antecedent statement says that you told the police you earned just $10,000 per month.

I also note that you did not test positive for amphetamines when you were tested by CSD on 19 January. You do not appear to have been tested for ketamine. In fact, you tested positive for cocaine.

In any event, I gave you the opportunity to have a Newton hearing in respect of what you say was your self-consumption of the drugs found upon you on 16 January 2018 or in respect of your cocaine habit if you had one. You declined that opportunity, despite the fact that I reiterated that you would not be penalized for wishing to give evidence about your drug habit. Given that stance, and the fact I have no evidence of you abusing ‘Ice’ or ketamine, I am not prepared to discount any part of your sentence on either count because of self-consumption.

You are now 32 years of age. You said in your interview that you worked as a transportation worker earning between 900 and $1,000 per day and you did not receive CSSA. You are single but you have a girlfriend and now a baby daughter. That has brought home to you the seriousness of your current situation and I have no doubt that you are remorseful.

You have a long history of criminal conduct. You first came to the attention of the criminal courts when you were just 15 years of age yourself for matters of robbery and theft for which you received probation. You first came before the courts for dangerous drugs in 2013 when you were 26 years of age. At that stage, for possession of dangerous drugs, you received a suspended sentence but then just a few months later you were charged with trafficking dangerous drugs for which you received a sentence of 5 years in prison.

I notice that you were discharged from prison in February 2017. It took you just four months to re-offend. You would also have been aware of the fact that a 15-year-old boy was arrested that evening in June of 2017 and would have been severely punished for his part in that offending, but that did not deter you.

Under Count 1, you are to be sentenced for trafficking in 312 grammes of cocaine. The guideline authority for the sentencing of trafficking in cocaine is R v Lau Tak Ming [1990] 2 HKLR 370. The starting point after trial for between 200 to 400 grammes is 12 to 15 years’ imprisonment. So for 312 grammes, the starting point after trial would be 13 years and 9 months.

There is the aggravating feature that you were part of a joint enterprise using young children to recruit couriers who were also young children, and that you were a quartermaster of what must have been a larger quantity of drugs and presumably the liaison for clients. You say you knew nothing about the fact that a minor was to be used until you met him to hand over the drugs but you did so nevertheless. The prosecution applies under section 56A of the Dangerous Drugs Ordinance, Cap 134 to have your sentence enhanced.

In HKSAR v Ng Hon Keung [2012] HKLRD 1017, the Court of Appeal observed at page 1022:

“In our view the provision under section 56A(2) will come into operation and the court can enhance the sentence if a minor is involved in the commission of the offence irrespective of whether the defendant knows that he is dealing with a minor or not. Anyone who deals with dangerous drugs will have to bear the consequence of receiving an enhanced sentence if a minor is involved in the offence.”

The court went on to say:

“We must emphasize that the making use of a young and vulnerable person to carry out drug trafficking is a serious aggravating factor and any adult drug trafficker who recruited or made use of a minor to traffic in a dangerous drug will potentially face an even longer sentence.”

More recently, in HKSAR v Wong Chun Hin [2018] HKCA 213, the Court of Appeal pointed out:

“This court should first point out that use of a minor in drug trafficking is an extremely evil act for the reason that it would result in the conviction, long‑term imprisonment and loss of future prospects of the mentally immature minor who is being used. A robust approach must be taken against such an evil act to protect minors from being harmed. In considering the range of enhancement, the court is required to take account of the particular circumstances of the individual case. The factual background relating to the enhancement of sentence in respect of this factor can vary to a great extent, and therefore it is not appropriate for the court to give explicit guidelines for the levels of enhancement. As a drug trafficking offence itself is going to result in an extremely long sentence, restraint should be exercised on the range of enhancement arising from other aggravating factors in order to avoid an overly severe sentence.”

I accept that there is no evidence that you personally recruited the boy, but for the use of a minor and for knowingly passing to him almost a half a million dollars’ worth of cocaine that night, I intend to enhance your sentence by 1 year to 14 years and 9 months. For your role as a quartermaster, I intend to enhance your sentence by a further 6 months to 15 years and 3 months. You will of course receive a one-third discount on that sentence for your early plea.

Under Count 2, you had in your possession two different types of dangerous drugs: ‘Ice’ and ketamine. The guidelines on sentencing for ‘Ice’ can be found within HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For up to 10 grammes of ‘Ice’, the sentencing range is between 3 and 7 years’ imprisonment. The guidelines for sentencing for trafficking in ketamine can be found within Secretary of Justice v Hii Siew Cheng [2009] 1 HKLRD 1. For between 10 to 50 grammes of ketamine, the sentencing range is 4 to 6 years.

You had in your possession 7.84 grammes of ‘Ice’ and 12.60 grammes of ketamine. The guidelines indicate that the starting point to be adopted after trial in each case would be 6 years for the 7.84 grammes of ‘Ice’ and 4 years 1 month for the 12.60 grammes of ketamine. To simply add those two sentences together would amount to 10 years and 1 month which does not reflect the true criminality of your offending on Count 2.

I have therefore looked at the various tests espoused within the authorities including but not limited to HKSAR v Chan Yuk Leong, CACC 318 of 2013 for guidance in assessing the sentence for this court.

I have taken, as my initial reference point, the sentence for the 7.84 grammes of ‘Ice’ because that is, by far, the more serious drug even though it is a lighter quantity. The starting point after trial for that drug is 6 years. I also took as an upper range of sentencing the 10 years and 1 month if the two were added together and I then compared that range with the ratio and conversion tests. In order to reflect the 6-year starting point that I have mentioned and the fact that you were in possession of the 12.60 grammes of ketamine as well, I considered that the conversion test was the most appropriate to reflect your possession of both drugs in order to traffic in them. I did that on the basis that you would have to be trafficking 50 grammes of ketamine to receive a sentence of 6 years’ imprisonment or 2.5 grammes of ‘Ice’ to receive a sentence of 4 years and 1 month.

Adding back the 2.5 grammes of ‘Ice’ to the 7.84 grammes of ‘Ice’, which you were trafficking, results in a sentence of 7 years whilst adding back 50 grammes of ketamine to the 12.60 grammes of ketamine, which you were trafficking, to the original sentence of 4 years and 1 month results in a sentence of 6 years and 2 months.

I do not consider 6 years 2 months reflects the criminality of your offending on Count 2 and so I consider a 7-year starting point to be appropriate for Count 2, which will also, of course, be discounted by one-third for your early plea.

These offences were seven months apart and were wholly dissimilar. In the first, you were involved in a joint enterprise which used children to recruit couriers. You appeared to have the role of someone who acted as quartermaster supplying drugs in quantity for others to deliver on to the consumer. I can see no reason at all why the sentences which I pass upon you should not be served wholly consecutively. However, if I did so, you would be facing a starting point of 22 years and 3 months. I have therefore compared that sentence with the sentence you would face if these offences had taken place at the same time and were similar in nature and if they were all converted to the same drug, that is cocaine.

If you had been in possession of 332 grammes of cocaine, you would have received a sentence of 14 years as a starting point plus the extra 12 months for using a minor and 6 months because of the role which you played in Count 1, making 16 years and 6 months. If that was the case, you would be serving a sentence of 11 years after a one-third discount for your plea

To reflect the wholly dissimilar nature of these crimes and the time gap between them, you will go to prison on Count 1 for 10 years and 2 months, and on Count 2, you will go to prison for 4 years and 8 months, 24 months of which will be served concurrently to Count 1 and 32 months of which will be served consecutively. You will therefore go to prison for 12 years and 10 months in total.