HKSAR v. Lee Wai Man

HCCC 69/2023

[2023] HKCFI 1994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 69 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant pleaded guilty to one count of trafficking in a dangerous drug before Magistrate Mr Lam Tsz Kan, admitted to the summary of facts read out in court and was, on 20 March 2023, committed to the Court of First Instance for sentence.

2.Particulars of the count are that the defendant on 30 March 2022, near Lamppost No 32349, Kut Shing Street, Chai Wan, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 126.2 grammes of a crystalline solid containing 124.4 grammes of methamphetamine hydrochloride (“ice”).

SUMMARY OF FACTS

3.The defendant was stopped for enquiry by two Police officers at about 6:26pm on the offence date inside Chai Wan MTR Station. While his identity card was being inspected, the defendant suddenly grabbed it from one of the officers and fled.

4.The officers gave chase. The defendant was eventually intercepted by an off-duty officer who, with the help of a passer-by, subdued the defendant near Lamppost No 32349 on Kut Shing Street.

5.The two officers caught up and searched the shoulder bag that the defendant was carrying.  A total of 25 plastic bags containing the charged dangerous drugs were found inside.

6.The defendant was arrested for the offence of trafficking in a dangerous drug.  A further body search was later conducted at Chai Wan Police station and one mobile phone and $1,938.80 were seized.

7.The market value of the drugs as at March 2022 was about $67,643.

8.The defendant admitted that he had, at the material time, unlawfully trafficked in the said dangerous drugs.

PREVIOUS CONVICTION

9.The defendant is of previously clear record.  He was, however, on 24 May 2023, sentenced to 22 months’ imprisonment for a burglary he committed on 12 March 2021.  He is currently serving that sentence.

BACKGROUND AND MITIGATION

10.The defendant is 21, educated up to Form 3 level in Hong Kong.  He was born in 2002 and attended boarding school from primary year 2 to 5, whereafter he resided with his maternal grandmother and uncle.

11.The defendant repeated primary year 5, but eventually dropped out of school after completing secondary Form 3 so that he could begin working to try to ease his grandmother’s financial burden.  He worked as a delivery person earning around $8,400 for a while, but became unemployed when the pandemic struck in 2021.  He was unable to secure another job and, trying not to make life for his grandmother more difficult than it already was, he agreed to deliver the dangerous drugs in this case for a reward.

12.It is Ms Remedios’s submission that there is no evidence to suggest the defendant’s role being anything but a mere courier, and that the guidelines tariff should, therefore, be applied arithmetically[1].

13.Ms Remedios also pointed out that there are no aggravating factors that would warrant an enhancement to the notional starting point, and that, given the circumstances of the case, the court should exercise leniency.

SENTENCE

14.The maximum sentence on conviction upon indictment for the offence is that of life imprisonment and a fine of $5 million.

15.For 124.4 grammes of ice, the applicable guideline tariff band is that of “70g to 300g – 11 to 15 years’ imprisonment”.

16.I agree with Ms Remedios that based on the summary of facts, the defendant’s role was that of a mere courier.

17.An arithmetical application of the said tariff would lead to a starting point of 11 years 11 months’ imprisonment.

AGGRAVATING FACTORS

18.There are no aggravating factors to enhance this starting point.

MITIGATING FACTORS

19.As to mitigating factors, I find first of all that committing the serious offence of trafficking in dangerous drugs based on financial need is not a ground of mitigation.

20.As to the defendant’s age, both at the time of the commission of the offence and at sentencing, as well as the defendant’s ADHD condition, I refer to the case of Secretary for Justice v Ko Fei-tat [2002] 4 HKC 59; CAAR 15/2001, where the Court of Appeal quoted the following passage from the judgment of R v Lau Tak-ming and others [1990] 2 HKLR 370:

“It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight. By this we mean age and disability - though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.”[2]

21.The defendant was 19 years and 4 months old at the time of the commission of the offence.  This does not fall into the extreme youth category given the context and nature of the offence involved.  Ms Remedios, very fairly, did not rely on the defendant’s ADHD condition as a mitigating factor.

22.That being the case, I find that the defendant’s timely plea is the only mitigating factor in this case, for which he is granted the full 1/3 discount.

23.The defendant is sentenced to 95 months’ imprisonment (7 years 11 months)  after plea.

TOTALITY

24.Since the defendant is presently serving a 22-month sentence for the burglary he committed on 12 March 2021, I must deal with the matter of totality in relation to that and the present sentence.

25.The commission of the two offences are about 1 year apart, but were committed by the defendant for the same reason, that is to say, he did it for the money to try to help out his grandmother.

26.Taking a step back, bearing in mind that the two offences are of totally different nature, that they were committed a year apart, but that the defendant is already facing a very lengthy sentence, I order that 7 months of the sentence in the burglary case be served consecutively to the present case, the balance concurrently.

27.The defendant is, therefore, to serve a total of 8 years 6 months’ sentence for the two cases.

Mr TANG Ming Chung, Kelvin, Senior Public Prosecutor, of the Department of Justice, for the Prosecution/HKSAR

Ms REMEDIOS, Lisa D'Almada, instructed by Messrs Yung, Yu, Yuen & Co assigned by DLA, for the Defendant