HKSAR v. Lam Hon Kwong

DCCC 989/2020

[2021] HKDC 692

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 989 OF 2020

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REASONS FOR SENTENCE

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1.Mr Lam pleaded guilty before me to three charges on a Charge Sheet as follows.

2.Charge 1 is Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on 10 July 2020, at Room 1725, Ching Yi House, Tsz Ching Estate, Tsz Wan Shan, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 17.9 grammes of a mixture containing 8.65 grammes of heroin hydrochloride.

3.Charge 2 is Possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on same date, at same place, had in his possession dangerous drugs, namely 1.11 grammes of a mixture containing 0.53 gramme of heroin hydrochloride, 1.51 grammes of a crystalline solid containing 1.36 grammes of methamphetamine hydrochloride and 0.27 gramme of a solid containing 0.22 gramme of ketamine.

4.Charge 3 is Possession of apparatuses fit and intended for the inhalation of a dangerous drug, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on same date, at same place, had in his possession apparatuses, namely two inhaling devices, fit and intended for the inhalation of a dangerous drug, namely methamphetamine.

Facts admitted by Mr Lam

5.On 10 July 2020, at about 2:57 pm, police tried to intercept Mr Lam when he was leaving Room 1725 (the full address of which is stated in the charges). He was holding a mobile phone.  After a struggle, the police subdued Mr Lam. Upon body search, police found and seized from Mr Lam’s right front trousers’ pocket a cigarette box.  Inside the cigarette box, there were 7 plastic bags containing 123 packets containing a total of 17.9 grammes of a mixture containing 8.65 grammes of heroin hydrochloride (E1).

6.Under arrest for trafficking in dangerous drugs and under caution, Mr Lam admitted he was going to sell E1 for a living.  The estimated street value of E1 was $13,372.90.

7.Upon searching the flat, police found a green paper box from a table top.  Inside the green paper box, there were:-

(a)  A plastic bag containing 8 packets containing a total of 1.11 grammes of a mixture containing 0.53 gramme of heroin hydrochloride (E2);

(b)  Two plastic bags containing a total of 1.51 grammes of a crystalline solid containing 1.36 grammes of methamphetamine hydrochloride (E3 & E4); and

(c)  A plastic bag containing 0.27 gramme of a solid containing 0.22 gramme of ketamine (E5).

8.The police arrested Mr Lam for possession of dangerous drugs.  Under caution, Mr Lam admitted E2 to E5 were for self-consumption.

9.The police further seized one inhaling device (E6) from the table top. E6 contained a total of 170 ml of a liquid which upon drying contained 0.07 gramme of a solid containing methamphetamine.

10.On the table were other items including four plastic boxes, one ceramic bowl, three plastic spoons, one strainer, two electronic scales, one plastic plate, one paper box, two piles of plastic-coated papers, two piles of resealable plastic bags, two empty cigarette boxes, one notebook, one pair of pliers, one pair of scissors, one calculator, and one lighter, some of which had traces of heroin in or on them.  There was also on the table another plastic box labelled “foot washing powder” containing 60.1 grammes of a solid not controlled under the Dangerous Drugs Ordinance.

11.The police arrested Mr Lam for possession of apparatuses fit and intended for the inhalation of a dangerous drug.  Under caution, Mr Lam said that the devices on the table were for dealings with heroin and ICE.

12.Police also found and seized another inhaling device (E7) in the flat. E7 contained 45 ml of a liquid which upon drying contained 0.02 gramme of a solid containing methamphetamine.  Under caution, Mr Lam stated that he made one more for backup use.

13.The police also seized two mobile phones on the bed inside the flat.

14.In Mr Lam’s right rear trousers’ pocket, police found a wallet with RMB93, HK$90, an Octopus card and a bank card.

15.Under cautioned VRI, Mr Lam admitted:-

(a)  He lived alone in the flat;

(b)  The heroin seized from his trousers’ pocket ie E1 was for sale;

(c) After buying the heroin from an unknown male, he would repack the heroin into packets and sell each packet (weighing about 0.15 gramme) at about $300; he started selling a few months ago and would contact buyers using his mobile phone;

(d)  He would grind the mixture of foot washing powder and Panadol pills and add it to the heroin for sale in packages of 0.15 gramme each at the price of $300;

(e)  He would contact the buyers with phones and meet up with them for trading;

(f)  The notebook has record of sales of heroin;

(g)  The heroin and ICE ie E2-4 in the green paper box on the table were for self-consumption; and

(h)  The inhaling devices ie E6-7 seized from the flat belonged to him and were used for taking ICE.

16.Mr Lam now admits that he possessed E1 for the purpose of unlawful trafficking; that he was in possession of E2-5; that he was in possession of E6-7 the two inhaling devices fit and intended for the inhalation of ICE.

Criminal record

17.Mr Lam has 3 previous convictions 2 of which (both in 2014) were similar.

Antecedents

18.Mr Lam is aged 61 (60 at the time of the offences), educated to F2, unemployed, resided alone in public housing in Tsz Wan Shan.

Mitigation

19.Ms Flora Cheng assigned by the Director of Legal Aid mitigated on behalf of Mr Lam.

20.The following is a summary of the mitigation submissions.

21.Mr Lam divorced his wife in 2011 with no children.  Previously, Mr Lam worked as a construction labourer and cleaning worker.  In March 2020, he sustained fractures to left collar bone in an accident causing temporary loss of working capacity.  He has been addicted to dangerous drugs for about 27 years and he committed the present offences to obtain quick money for his drug problem and to sustain living.  Urine test shortly after arrest confirmed that he was confirmed positive for Amphetamine.

22.Mr Lam made immediate oral admissions on all 3 offences on arrest and continued to give detailed admissions in the VRI.  He indicated his pleas at the earliest opportunity.  He urges the court to grant him the customary one-third discount.

23.Ms Cheng referred to the guidelines set down in The Queen v Lau Tak Ming & Ors [1990] 2 HKLR 370 and submitted that the sentence for trafficking in 8.65 grammes of heroin hydrochloride (Charge 1) should come within the range of 2 to 5 years (for up to 10 grammes of the drug).  It was also submitted that the court has a wide discretion in sentencing for Charges 2 and 3.  Ms Cheng reminded the court that all 3 offences were committed on the same date and at the same place and urged the court to apply the totality principle and to sentence Mr Lam as leniently as possible.

Sentence

24.On Charge 1, on purely arithmetical consideration as per the tariff guideline, the sentence after trial should be about 55 months’ imprisonment. This is the starting point that I will adopt in the case of Mr Lam.

25.On Charge 2, taking into account the not insubstantial amount of ICE and the presence of a cocktail of drugs, I shall adopt a starting point of 15 months’ imprisonment.  I will not enhance it further on the basis of latent risk factor.

26.On Charge 3, I take into account the presence of two inhaling devices and so I am minded to impose a sentence of 3 months and 15 days’ imprisonment after plea.

27.Mr Lam pleaded guilty in good time earning him the 1/3 discount for Charges 1 & 2.  There are no other mitigating factors of sufficient weight to justify any further reduction.

28.Although the offences are expressed in the charges to have taken place at the same place ie his residence, I cannot ignore the fact that Mr Lam was on his way out from his residence when he was intercepted by the police.  No doubt, he was on a mission to sell the drug that was later found on his person.  For this reason, Charge 1 cannot be regarded so benevolently when the court considers how the sentences on the 3 charges are to run among themselves.

29.After consideration, I conclude that, before taking into account the totality principle, the sentence on Charge 1 should run consecutively to the concurrent sentences on Charges 2 and 3.  However, when totality is considered, a degree of concurrency between Charge 1 and the other charges will be allowed.

30.I shall impose the following individual sentences.

(Mr Lam, please stand)

31.For Charge 1, Mr Lam is to go to prison for 36 months and 2/3 or, to put it more precisely, 36 months and 20 days.

32.For Charge 2, Mr Lam is to go to prison for 10 months.

33.For Charge 3, Mr Lam is to go to prison for 3 ½ months or, to put it more precisely, 3 months and 15 days.

34.I order that the sentences on Charges 2 and 3 are to be served concurrently with one another.  I further order that 2 months and 1/3 or, to put it more precisely, 2 months and 10 days, of the sentences on Charges 2 and 3 is to be served consecutively to the sentence on Charge 1, making an aggregate sentence of 39 months’ or, to put it more precisely, 38 months and 30 days’ imprisonment for Mr Lam.