HKSAR v. Lam Wai Ling Help

HCCC 35/2020

[2021] HKCFI 1693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 35 OF 2020

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

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COURT: The defendant faced a count of possession in dangerous drugs in case number HCCC 35/2020 and one count of trafficking in a dangerous drug in HCCC 34/2020. Both matters are heard before me. She pleaded guilty to the possession of dangerous drugs count and pleaded not guilty to the trafficking in dangerous drug count at the commencement of the hearing for these proceedings. I adjourned the sentence for the possession count until the conclusion of the trial on the trafficking in dangerous drugs offence.

After trial, she is acquitted by the jury of the trafficking in dangerous drugs offence and she is also acquitted and found not guilty by the jury of the alternative of simple possession charge I put before the jury as well. So she now falls to be sentenced by me for only the possession of dangerous drugs count in HCCC 35/2020.

That charge alleges that the defendant on 6 November 2018 at Room 2218 Lok Wong House, Tsz Lok Estate, Wong Tai Sin Kowloon in Hong Kong had in her possession a dangerous drug, namely 66 millimetres of a liquid containing 2.98 grammes of a solid containing 2.05 grammes of methamphetamine.

The facts to which the defendant admitted for the purpose of the plea set out the factual background to the matter as follows. On the day in question, the police conducted an anti-narcotics operation. A search was conducted at Flat 2218, the flat the subject of the charge, where the defendant was found. The police found in the living room two inhaling devices each inserted with a plastic straw and a glass tube was found. The liquid inside one of the devices was found to contain 46 millimetres of a liquid which contained 2.47 grammes of a solid upon drying, containing 1.67 grammes of methamphetamine. The other device was found to contain 20 millimetres of a liquid which contained 0.51 gramme of a solid upon drying, containing 0.38 grammes of methamphetamine.

The defendant told the police officer that the two inhaling devices were used by her to consume ‘Ice’. On one of the inhaling devices, her DNA was found.

The total estimated street value of the dangerous drugs involved was $1,788.

On these facts she admitted that she possessed the dangerous drugs seized for her own use apparently.

In mitigation, I have been told that the defendant was divorced in 1993. She has several siblings and prior to her arrest and remand in custody, she had been working in a laundry shop earning on average $9,000. And I am told she had been working for almost a decade in the laundry shop.

The defendant is now aged 54 years old. She has 11 previous criminal convictions for 15 offences altogether, 10 of which were dangerous drugs related. She was last convicted 20 years ago in 2001 for three charges of trafficking in dangerous drugs and one possession of equipment fit and intended for inhaling dangerous drugs offence, as well as in respect of a separate case for the offences of robbery and theft.

The two separate District Court cases for which she was sentenced in 2001 were dealt with together and she received a total sentence of 6 years on that occasion - 3 years for the three trafficking in dangerous drugs as well as the one possession of equipment offence.

For the present case, the defendant has already been remanded in custody since her arrest on 6 November 2018 for a period of over 2½ years. To be exact, 2 years 6 months and 16 days. It seems unlikely that she would still be addicted to drugs and on that note I do not see the utility, in fact, of asking for a report from the drug addiction treatment centre to be prepared on her.

Sentence

The maximum sentence for possession of dangerous drugs is 7 years’ imprisonment together with a 1 million fine on conviction on indictment. But for the exceptional circumstances which exist in the present case, the proper approach to sentencing possession of dangerous drugs is well-established and it is set out in the case of HKSAR v Wan Sheung Sum. The principle and the three-stage approach expounded in that case was later summarised in HKSAR v Lee Chun Man, CACC 360/2014, and HKSAR v Wong Wai Wah, CACC 181/2017.

In short, as summarised in those authorities, the three-step approach requires the sentencing judge to consider firstly the starting point to be imposed on the count of possession. The normal starting point suggested in those authorities is one between 12 months’ to 18 months’ imprisonment.

The second step required the sentencer to assess the -- what is termed “latent-risk factor” and to consider whether the starting point should be increased or enhanced to take that into account - the risk of the drugs finding their ways into other’s hands apart from the offenders.

The third step requires the sentencer to adjust the total sentence derived from the first two steps to take into account mitigating factors applicable, such as guilty plea and other mitigating circumstances.

However, for this case, there is an exceptional feature which I will address below. The total quantity of drugs involved in this case, as set out in the charge, the possession of dangerous drugs offence on which the defendant is convicted on her own plea, is merely 2.05 grammes of ‘Ice’. Applying the three-step approach, if one were to apply it as expounded by the Court of Appeal and as outlined by me just now and taking into account all relevant sentencing circumstances and sentencing authorities, the period of imprisonment for such a small quantity of ‘Ice’ would inevitably be a short period of imprisonment.

As I have said, the defendant has already been remanded in custody since her arrest for a period of over 2.5 years. Taking into account the usual remission for good behaviour, she has essentially served a sentence of nearly 4 years, to be exact, 3 years and 10½ months. This would be equivalent to a starting point before guilty plea of approximately 6 years.

Mr Lee urged me to consider imposing a sentence that would effectively allow for the defendant’s immediate release. In particular, Mr Lee suggested that I should consider the options of either a fine or a suspended sentence in lieu of calling for a DATC report as mandatorily required under section 54A of the Dangerous Drugs Ordinance.

Mr Lee prayed in aid similar approaches adopted by the Court of Appeal in HKSAR v Wong Pui Wo Kenny [2018] 5 HKLRD 424 and HKSAR v Chan Chi Tak [2019] HKCA 524 as well as, Mr Lee stressed, the sentiments expressed by the Court of Appeal in those cases in respect of the inflexibility of section 54A and the potential injustice and harshness that may entail from a strict application of the mandatory provision.

I agree with Mr Lee’s submission. It would indeed be artificial to go through the three-step approach and fix a sentence of imprisonment for the possession of dangerous drugs count and to adjourn the matter calling for a report before I proceed to sentence her. This is because the defendant would have long served any imprisonment term suitable for her in this case. It would be artificial and unjust, as I said, to further remand the defendant for a DATC report to be prepared solely for the purpose of complying with section 54A. To do so would mean that the defendant will be deprived of her liberty for the preparation of an unnecessary report and further inconvenience will be caused for all concerned by compelling them to return to court for the mere purpose of imposing a sentence that would effectively allow for the defendant’s release from custody. She has, I stress, long served the sentence that would be appropriate for her in any event.

In such unusual and exceptional circumstances, and I stress it is purely for such a reason, I am minded to accede to Mr Lee’s submission and impose a non-custodial sentence on the defendant. Taking into consideration the circumstances of the offence, the personal circumstances of the defendant including her means, I would impose a fine in the sum of $20,000 for the offence of possession of dangerous drugs upon which she was convicted. And this is the sentence I impose.

(Proceedings from 3.26 pm to 3.35 pm not required)

COURT: Defendant, I am sure you will be advised in due course more fully, but I would impose an order that in default of the payment of fine in the sum of $20,000 that I have just imposed. I have given you time for payment to be made within two weeks and I will specify the two weeks to start on Monday, two weeks to count on Monday.

So within two weeks of Monday next, if you do not pay the sum of money I have just imposed by way of fine, you are to serve an imprisonment term of 1 month in default of such payment of the fine, do you understand?

ACCUSED: Understood.

COURT: Understand?

ACCUSED: Understood.