HKSAR v. Lam So Kam, Ann

DCCC1287/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1287 OF 2011

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Reasons for Sentence

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The charges

1.The defendant pleaded guilty to two charges.

(1) trafficking in a dangerous drug namely 21.55 grammes of a mixture containing 11.44 grammes of heroin hydrochloride and 4.32 grammes of a crystalline solid containing 4.18 grammes of methamphetamine hydrochloride. Such offence is contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134; and

(2) Possession of equipment or apparatus fit and intended for the smoking or inhalation of dangerous drugs under section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap.134.

The Facts

2.The facts of the case can be summarised as follows.  At around 3.07 pm on 20 September 2011, the police officers intercepted the defendant at the corridor of 11/F, Cheong Chung House, Nam Cheong Estste, Shamshuipo, Kowloon.  Upon search, 12 pellets which contained a total of 2.02 grammes of a mixture containing 1.11 grammes of heroin hydrochloride in a resealable plastic bag placed inside the defendant’s shoulder bag were found.

3.The defendant was arrested for possession of dangerous drug.  Under caution, she claimed that the heroin was for self-consumption.  The police officer conducted a house search at the defendant’s residence at Room 1120 of the same floor.  Upon search, resealable plastic bags containing a total of 19.53 grammes of a mixture containing 10.33 grammes of heroin hydrochloride and a total of 4.32 grammes of a crystalline solid containing 4.18 grammes of methamphetamine hydrochloride were found on a dinning table in the sitting room.

4.Amongst other items, an electronic scale, a packet of resealable plastic bags, plastic sheets similar to those used to wrap the 12 pellets, a cash book, one glass tube containing traces of methamphetamine and with one end connected to a plastic straw segment and another plastic straw segment containing traces of heroin were also found on the said dining table.  Cash of $6,100 was found in the bedroom.

5.The defendant was arrested for trafficking in dangerous drugs and possession of instrument fit and intended for smoking dangerous drug.  Under caution, the defendant claimed that the heroin and “Ice” were for self-consumption whereas the glass tube and tin foil were used to inhale drugs.

6.Subsequently, the defendant admitted under caution that she supplied drugs to her friends in return for money.  The electronic scale was used to weigh drugs and the plastic sheets and plastic bags were used to wrap the drugs.  She made the entries in the cash book to record the amount of drugs she had shared with friends and the amount of money they had owed her.

The defendant’s background and mitigation

7.The defendant is a 46 years old divorcee.  She has a 21-year-old son by her ex-husband and a 5-year-old son by her current cohabitee. She has been a drug addict for years and had 10 previous convictions of possession of dangerous drugs.  She also received psychiatric treatment for her mental illness according to her Counsel. 

8.At the time of the offence, the defendant was jobless and had been receiving $6,800 CSSA per month.  The defence counsel submitted that the defendant was under a lot of stress in taking care of his son.  Due to her drug addiction and for financial reasons she committed the present offences. 

Consideration on sentencing

(i) Charge 1

9.The nature and quantity of drugs and narcotic contents involved were 11.44 grammes of heroin and 4.18 grammes of methamphetamine hydrochloride. 

Individual or combined approach

10.For sentence involving more than one type of dangerous drug, the court would adopt either the individual or the combined approach.  The defendant trafficked in substantial quantity of both heroin and methamphetamine hydrochloride, which were packed in separate and distinct packages. 

11.This court would adopt the individual approach (see HKSAR v Lai Kwok Hung CACC564/2002 unreported).

12.As such the sentence relevant to each individual drug had to be established before an appropriate adjustment to the overall starting point is made. 

Sentencing guideline

13.The Court of Appeal laid down sentencing guidelines for trafficking in these drugs after trial as follows. 

(i) For 10 to 50 grammes of heroin, 5 to 8 years’ imprisonment is warranted (see R v Lau Tak Ming and another CACC230/1989).

(ii) For up to 12 grammes of methamphetamine hydrochloride, 3 to 7 years’ imprisonment is called for (see AG v Ching Kwok Hung CACC15/1990).

Staring point

14.This court will therefore adopt a starting point of 5 years for 11.44 grammes of heroin and a starting point of 4 years for 4.18 grammes of methamphetamine hydrochloride.

15.Having considered the circumstances of the case and those of the defendant, mitigation put forward by the defence counsel, the relevant authorities and the sentencing guidelines and totality principle, the court reduces the combined starting point of 9 years by 2½ years, resulting in an overall starting point of 6½ years’ imprisonment (i.e. 78 months).

Sentence on Charge 1

16.The defendant is entitled to a one-third discount for her guilty plea, so as to reduce the sentence on Charge 1 to 52 months’ imprisonment.  

(ii) Charge 2

17.There was no sentencing tariff for the offence in Charge 2.  However, 4 months’ imprisonment after plea would be appropriate under the circumstances. 

Concurrent or Consecutive sentences

18.As both offences were committed on the same occasion and could be regarded as in one single transaction, this court would impose a concurrent sentence on both charges.  There were no other mitigating features to justify further reduction in sentence.   As such, the defendant has to serve a total sentence of 52 months’ imprisonment.