HKSAR v. Lee Sau Kam

DCCC1080/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1080 OF 2008

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Before:   H H Judge Whaley

Date:     19 March 2009 at 11.12 am

Offence:  Trafficking in dangerous drugs, etc. (販運危險藥物等罪項)

Reasons for Sentence

1.The defendant has been convicted on her plea of one charge of trafficking in dangerous drugs on 2 October last year, namely trafficking in 11.23 grammes of a crystalline solid containing 10.86 grammes of methamphetamine hydrochloride and 10 tablets containing 0.06 gramme of nimetazepam; and secondly, of possession of apparatus fit and intended for the inhalation of a dangerous drug on the same date.

2.The defendant and a man were seen on the night in question by police officers coming out of the flat where she lived in Kowloon City.  They were intercepted and the flat was searched under authority of a search warrant.  Inside the bedroom the police officers found an inhaling device which contained a liquid subsequently found to consist of 46 millilitres of a liquid containing traces of methamphetamine, commonly known as Ice, that is the subject of the 2nd charge.  This apparatus also included a piece of tinfoil and a rolled paper attached to a plastic tube, both of which contained traces of Ice.  Inside a cabinet the drugs, the subject of the 1st charge, were found, the Ice  contained in four separate plastic bags and the 10 tablets of nimetazepam in a separate foilpack; also inside the cabinet, inside a cotton bag, were found 268 empty resealable plastic bags. 

3.After her arrest, under caution, the defendant claimed that “The Ice is for my own consumption.  My friend does not know that I take Ice.”  Subsequently in the course of interviews with the police she claimed that she had a surplus of money recently and so she had been able to buy the quantities of Ice that were found in her flat, since it was cheaper to buy a larger quantity in one go.  She admitted that sometimes she would treat her friends to drugs, and she further admitted that she had been unemployed for the past two to three months during which time she said she was living on her savings.  She claimed that the nimetazepam tablets had been left behind by her friends and she did not know how to contact her friends. 

4.According to the evidence of a police expert on drugs, the average retail price of Ice at that time was $563 per gramme and the total value of the Ice found in the flat was therefore $6,322.  The average retail price of the nimetazepam tablets was $48 per tablet, so the value of the 10 tablets found was $480.

5.The defendant is 43 years of age.  She has two previous convictions, both for trafficking in dangerous drugs, one for trafficking and the other for conspiracy to traffic in dangerous drugs in 1998 and 2002 respectively.  For the last offence she was sentenced to 4 years’ imprisonment, and I am informed that she was released from prison on 6 October 2003.

6.The defendant must be well aware from her previous experiences in the courts of the very serious view that the courts in Hong Kong take of trafficking in dangerous drugs.  As the courts have made clear over the years Ice is a particularly pernicious drug.  The Court of Appeal has suggested guidelines for sentencing in these cases in the hope of achieving uniformity in the sentences passed by different courts.  The guidelines are based largely on the quantity or the weight of drug trafficked in, so that people like the defendant can have a good idea what sort of sentence they will receive if they are caught trafficking.

7.The guidelines for trafficking in Ice are set out in AG v Ching Kwok Hung Application for Review No. 15 [1990]. The first sentencing band suggests that for a quantity of narcotic up to 12 grammes in weight, a starting point of 3 to 7 years’ imprisonment after plea would normally be an appropriate sentence.  The guidelines are not intended to be straitjacket but generally they should be departed from only for very good reason.

8.The quantity of narcotic which the defendant has admitted she was trafficking in the present case was 10.86 grammes of Ice, towards the upper end of that first sentencing band.  However, the defendant claimed, that the Ice was for her own consumption, and as the Court of Appeal has made clear where this claim is made by a defendant, it should be investigated by the court and if it is accepted, it may well make a difference to the sentence which it is appropriate to impose.

9.In HKSAR and Wong Suet Hau and another [2002] 1 HKLRD 69, the court emphasized that given the dangers of the abuse of this avenue of mitigation, since it is a very easy claim for a defendant to make, the sentencing court should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the defendant’s contention.

10.In the course of the interviews the defendant claimed under caution that she had been addicted to Ice and heroin for about 20 years past.  I note that the urine test which was conducted upon her upon admission following her arrest tested positive for Ice.  The defendant claimed that she consumed approximately one to two grammes of Ice per day.  I note that the expert report which has been put in states that the chronic Ice abusers who attended the Government Substance Abuse Clinic commonly consumed 250 millilitres to one gramme per day.

11.The Ice which was found in the defendant’s bedroom was distributed amongst four plastic bags.  As for the 268 empty resealable plastic bags which were found in her flat, when she was asked about them in the interview, the defendant said she had bought them many years ago, she admitted that she had not discarded them even though she had moved flat recently, and she claimed she could not remember why she had bought such a large quantity of empty bags.  She further elaborated through her counsel, Mr Ng, that she used some of the bags to hold beads.  Her explanations for her possession of this large number of empty resealable plastic bags, particularly her claim that she could not remember why she had bought such a large quantity, were simply not credible.  It is also important to note that in the course of the interviews the defendant admitted that she did sometimes treat her friends to drugs; she elaborated that she would share drugs with her friends one to two times per month. 

12.On all the evidence I accept that some of the Ice which was found in her flat was intended for the defendant’s own consumption.  It is not possible, in my view, to realistically quantify the amount or the proportion that she intended for her own consumption.  I note that the Court of Appeal in HKSAR and Wong Suet Hau stated that it was not necessary, save in the most exceptional case where the division was readily quantifiable, for the sentencing judge to specify the relative amounts or proportions, except in the very broadest terms.

13.It is important to keep in mind that she admitted that she shared drugs with her friends one to two times a month; also that she had been unemployed for three months, on her own admission, prior to her arrest, during which time she claimed she was living on her savings which she had accumulated from her previous employment as a courier, and in addition her boyfriend subsidized her and paid for amongst other things the rent.  I note also her recent previous convictions for trafficking in dangerous drugs in 1998 and conspiracy to traffic in dangerous drugs in December 2002, and also her possession of this large quantity of empty resealable plastic bags for which she gave no credible explanation at all and which are highly consistent with her possession of them for the purpose of packaging drugs to pass on to others, either giving them or selling them.

14.It must also be borne in mind that even in relation to the quantity of these drugs which were intended for her own self-consumption, the defendant would be liable to be sentenced to imprisonment for simple possession, which would call for a starting point of 12 to 18 months’ imprisonment, which would be liable to be enhanced to reflect the latent risk of at least some of those drugs finding their way into the hands of others.

15.On the facts of this case, this risk was in fact a certainty in view of the defendant’s admission that she shared her drugs with friends once or twice a month.  In those circumstances I would enhance the starting point for simple possession by no less than 50 per cent.  In all these circumstances, accepting as I say that the defendant intended a significant quantity for her own consumption, I have adopted a reduced starting point of 4½ years’ imprisonment after trial for the ice on the 1^st charge.

16.For her plea and co-operation with the authorities, she is entitled to the full one-third discount which reduces the starting point to 36 months’ imprisonment.

17.I have treated the small quantity of nimetazepam tablets as “ merging ” into the far more significant drug, the Ice, and it does not call for any increase in the starting point in my view.  So the sentence I impose on the 1st charge is 3 years' imprisonment. 

18.As far as the 2nd charge is concerned, the possession of apparatus fit and intended for the inhalation of a dangerous drug, the accepted tariff is in the order of 3 months' imprisonment after plea.  I have in mind R v Law Sing [1996] 4 HKC 477. After applying the one-third discount for her plea and co-operation, it results in a sentence of 2 months' imprisonment on the 2nd charge, which I order to be concurrent with the sentence on the 1st charge.  So the total sentence that the defendant faces on both charges is 3 years’ imprisonment.