HKSAR v. Lee Wing Sum

DCCC 627/2022

[2023] HKDC 1557

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 627 OF 2022

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REASONS FOR SENTENCE

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1.Mr Lee pleaded guilty before me to two 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 3 January 2022, near the junction of Shanghai Street and Min Street, Yau Ma Tei, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 6.49 grammes of a crystalline solid containing 6.39 grammes of methamphetamine hydrochloride.

3.Charge 2 is Possession of apparatuses fit and intended for the inhalation of dangerous drugs, contrary to section 36(1)  and (2)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on the same date, at the same place, in Hong Kong, had in his possession apparatuses, namely 3 glass bottles, 7 straws and one lighter, fit and intended for the inhalation of dangerous drugs.

Facts admitted by Mr Lee

4.On 3 January 2022, at around 8:43 pm, at a road block near the junction of Shanghai Street and Min Street, Yau Ma Tei, police stopped a taxi and found Mr Lee on board as a passenger.  Mr Lee was found to be wanted for an unrelated case.  He was arrested.

5.On the way back to the police station by police transport, it was noticed Mr Lee kept inserting his right hand into a black plastic bag (“the Black Bag”)  he was carrying as if he was searching for something.

6.Upon arrival at Yau Ma Tei Police Station, it was observed that when Mr Lee was about to alight from the vehicle, he discarded a package onto the passenger seat.  The package was found to be one transparent re-sealable plastic bag sealed with a blue line containing another transparent re-sealable plastic bag containing 6.49 grammes of a crystalline solid containing 6.39 grammes of methamphetamine hydrochloride.

7.On Mr Lee was found cash of $4,695.  In the Black Bag carried by Mr Lee were found the following items (together “the Apparatuses”):-

(a)  7 suction tubes;

(b)  3 glass bottles each wrapped in a bubble wrap and tied with a rubber band; and

(c)  One lighter packaged in a transparent plastic cover with a piece of carton paper at the back.

8.Mr Lee was arrested again.

9.The estimated street value of the drug was around $3,797.

10.Mr Lee now admits that (a)  he was in possession of the drug for the purpose of unlawful trafficking; and (b)  he was in possession of the Apparatuses which were fit and intended for the inhalation of dangerous drugs.

Criminal record

11.Mr Lee has 8 previous convictions two of which (recorded in 1996)  are similar and for these two convictions he was sentenced together to a total of 9 years’ imprisonment.

Antecedents

12.Mr Lee is aged 50 (49 at the time of the offences), educated to F3 level, employed as a transportation worker cum driver.  He resided in public housing in Kowloon City.

Mitigation

13.Ms Joyce Wu of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Lee.  The following is a summary of the mitigation submissions.

14.Mr Lee resided with his mother (72)  who requires regular medical follow-up.  Before the pandemic, Mr Lee used to earn about $30,000 a month as a driver and would give $12,000 to his mother.  During the pandemic, Mr Lee’s income fell and he could barely make ends meet.  He has been unemployed since April 2021 relying on his savings instead.  He was in financial difficulty so he committed the present offences as a courier of dangerous drugs for quick money to provide for his family.

15.Charge 1 concerns 6.39 grammes of ICE.  Under the guidelines established in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, trafficking in up to 10 grammes of ICE would attract an immediate custodial sentence of 3 to 7 years.  The narcotic content of ICE involved is 6.39 grammes and would therefore attract a starting point of approx 5 years and 6.67 months’ imprisonment.  Mr Lee only indicated his guilty plea on 13 October 2023, ie after the trial dates have been fixed but before the first day of trial.  Ms Wu urges the court to exercise its discretion and give Mr Lee 25% discount resulting in a sentence of approx 4 years and 2 months’ imprisonment after plea.

16.Charge 2 usually calls for a sentence of 3 months after plea (see R v Law Sing [1996] 4 HKC 477)  which is equivalent to a starting point of 4 ½ months.

17.As the two charges were committed at the same time and in the same place, Ms Wu urges the court to consider their proximity, the totality principle and to order the sentences to run concurrently.

18.Ms Wu asks for leniency on behalf of Mr Lee.

Sentence

19.I will ignore the previous two similar convictions for the purpose of sentencing.  The reason is that they occurred almost 30 years ago.

20.I have considered the 6-step approach to sentencing in this kind of case promulgated in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.  I regard Mr Lee as a mere courier of drug.

21.For Charge 1, I adopt as the starting point in Mr Lee’s case one of 66.67 months which is the figure obtained arithmetically from the tariff guidelines for trafficking in the amount of ICE carried by Mr Lee.

22.For Charge 2, I adopt as the starting point in Mr Lee’s case one of 4 ½ months.

23.Mr Lee indicated his guilty pleas not at the first opportunity but well in advance of the original trial dates.  I will afford him ¼ discount from the starting points.  There are no other mitigating factors that I can see which could justifiably reduce the sentences further.

24.However, for Charge 2, I will round down the sentence after discount to the nearest whole number (in months’ terms).

25.The two offences were committed at the same time and place.  The possession offence is a minor offence as compared to the trafficking offence. I will make the related sentences run concurrently with each other.

(Mr Lee, please stand)

26.For Charge 1, Mr Lee is sentenced to 50 months’ imprisonment.

27.For Charge 2, Mr Lee is sentenced to 3 months’ imprisonment.

28.I order that the two sentences are to run concurrently with each other.