HKSAR v. Ng Wing Lam

HCCC 432/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 432 OF 2013

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: The defendant has been convicted on his own plea of the following charges: Count 1, trafficking in a dangerous drug, namely 4,605.77 grammes of a crystalline solid containing 4,594.36 grammes of methamphetamine hydrochloride, commonly known as “Ice”; and Count 2, possession of dangerous drugs, namely 12 tablets and one tablet fragment containing a total of 0.34 gramme of methamphetamine and 0.21 gramme of ketamine, and 57 millilitres of a liquid containing 3.9 grammes of methamphetamine.

The Summary of Facts admitted by the defendant provides, inter alia, that in the afternoon of 6 March 2013, a group of police officers went to the area around Pao Fung Mansion, situated at 54-60 Nam Cheong Street, Sham Shui Po, Kowloon.

At about 1.30 pm that day, the defendant entered Pao Fung Mansion using the security code. Police officers quickly followed and intercepted the defendant on the ground floor of the building.

A short time later, the defendant consented to police searching his premises. Police proceeded to Room B on the rooftop of the building. The police asked the defendant if he had a key to open the door, and the defendant took out two keys from the keyholder found on his person earlier and opened the iron gate and then the wooden door to the premises.

The police and the defendant then entered the premises. The police saw inside the master bedroom of the flat a Chinese female sitting on the edge of the bed. The police then conducted a search inside the flat. The police found two packets of suspected dangerous drug “Ice”. The drugs had been wrapped in resealable plastic bags in a white paper box located inside a white cabinet near the entrance of the premises.

The police then declared arrest of the defendant for trafficking in dangerous drugs, and cautioned the defendant. The defendant was asked if he understood what had been said to him, and the defendant said to the officer, “‘Ah Sir’, it has nothing to do with the woman. The dangerous drugs are mine.”

The defendant was then handcuffed by the police, who took possession from him of the keyholder containing keys which had been used to open the iron gate and wooden door to the flat, together with three mobile phones found on him.

The police continued their search of the premises and found and seized a number of items, including:

(i) Five packs of suspected dangerous drugs wrapped in transparent plastic and contained in an iron tin on the floor of the living room of the flat. This, together with the other suspected dangerous drugs found in resealable plastic bags, form the basis of Count 1 on the indictment;

(ii) Some tablets (13 pills) in a book cabinet of the writing desk in the master bedroom. These tablets, together with some brown liquid found in the refrigerator (see: subparagraph (iv) below), form the basis of Count 2 on the indictment;

(iii) A white plastic shovel, transparent resealable plastic bags of suspected dangerous drugs, together with a batch of resealable plastic bags and an electronic scale, on the upper shelf of the wooden cabinet in the living room of the flat; and

(iv) Two beakers containing a brown liquid later found to contain methamphetamine, in the refrigerator in the living room of the flat.

The suspected dangerous drugs seized by police at the premises were sent to the Government Chemist for analysis. The chemist found that:

(i) the dangerous drugs found totalled 4,605.77 grammes of a crystalline solid containing 4,595.36 grammes of methamphetamine hydrochloride;

(ii) the 13 tablets contained a total of 0.34 gramme of methamphetamine and 0.21 gramme of ketamine; and

(iii) the 57 millilitres of liquid contained 3.9 grammes of methamphetamine.

A short time after midnight that day, the police conducted a video‑recorded interview of the defendant in relation to the matter. In that video-recorded interview, the defendant, inter alia:

(i) Stated that he was asked about two months ago by a man he had known for two years called “Ah Cheong” to help him by keeping something, and “Ah Cheong” would pay the defendant a reward, which the defendant called “tea money”, of $10,000 if he kept it for several days;

(ii) Claimed it was explained to the defendant by “Ah Cheong” that he was to keep what he received:“several packs” in different places, not in one place together;

(iii) Stated that he agreed to do what he was asked as he was in financial difficulties. He had been unemployed for some time;

(iv) Stated that he took the “Ice” to his flat and kept it in different places inside his flat;

(v) Admitted that plastic bags containing dangerous drugs that the police seized had been separated by him and stored in various places in the flat where the police found them;

(vi) Claimed that he had not been paid the $10,000 yet for the storage of the drugs;

(vii) Claimed that the Chinese female had dropped by his flat to take drugs, and that she knew nothing about him storing the drugs in the flat. It was all his responsibility, and he felt sorry for getting her into trouble.

A police expert estimated that the retail value of the quantity of drugs seized by police at the defendant’s flat, ie 4,605.77 grammes of methamphetamine hydrochloride, was HK$3,661,587.15.

By way of personal background, the defendant is aged 56. He was born in Hong Kong in March 1959. He received education up to Primary 6 level. He began working at the age of 14. He has worked at a garment factory, a cardboard factory, and as a transportation worker. He was unemployed at the time of his arrest. The defendant had been married, but divorced in 2013.

The defendant has five previous convictions, none of which is related to dangerous drugs.

By way of mitigation, Mr David Boyton submitted on behalf of the defendant that there is no aggravating feature in this case. He urged me to take into account the fact that the defendant has no previous conviction for dangerous drugs.

I deal first with the proper starting point for sentence on Count 1.

The tariffs set out by the Court of Appeal in Attorney-General v Ching Kwok Hung [1991] 2 HKLR 125 are applicable in this case. I agree with Mr Boyton that there are no aggravating matters present, such as an international element.

The Court of Appeal’s Judgment in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 was handed down on 9 June 2014, which, inter alia, recast the “Ice” guideline for amounts over 600 grammes: effectively by following the equivalent heroin guidelines as laid down in HKSAR v Abdallah [2009] 2 HKLRD 437 for larger quantities. The recast guidelines suggest a sentence of between 26 to 30 years for quantities of between 4,000 and 15,000 grammes of “Ice”.

However, at the time when the offence in the present case was committed, there were no tariff guidelines as to a quantity of methamphetamine hydrochloride over 600 grammes, other than a starting point of 18 years and upwards as indicated in the Ching Kwok Hung case.

I agree with Mr Boyton that at the material time in March 2013, the Abdallah guidelines did not apply in the instant case, as indicated by McWalters J (as he then was) in HKSAR v Chan Po Wah, CACC 179/2012 (Reasons for Judgment dated 26 March 2013) at paragraph 19.

Indeed, Stock VP (giving judgment of the Court of Appeal) had this to say at paragraph 41 of the Tam Yi Chun case:

“41. We think that a just way of approaching the present application is to recognise that even if the Abdallah guidelines have in practice been applied by first instance judges to trafficking in very large quantities of ‘Ice’, that has not been the consistent approach at the appellate level...For present purposes, therefore, the applicant should have the benefit of the uncertainty and be sentenced on the basis that at the time of the offence of which she was convicted, the Abdallah guidelines did not apply to trafficking in very large quantities of ‘Ice’, and that a slightly lower tariff was applicable at that level.”

The present case involves just under 4,600 grammes of “Ice”. I agree with Mr Boyton that HKSAR v Nkosi Xolile Rose, CACC 331/2013 (Reasons for Judgment dated 15 December 2014), with the closest amount is indicative of an appropriate level of sentence at the material time. The Nkosi Xolile Rose case involved a Kenyan national caught at the airport with 3,300 grammes of “Ice”, and the starting point of 24 years was approved by the Court of Appeal, prior to the enhancement to reflect the international element.

In my view, taking into account all the matters set out above, the proper starting point for sentence on Count 1 in the present case should be 24 years and 3 months’ imprisonment.

I shall give the defendant a full one-third discount for his guilty plea. This results in a sentence of 16 years and 2 months’ imprisonment on Count 1.

On Count 2, possession of dangerous drugs, for the small quantities of narcotics involved, I will adopt a starting point of 18 months’ imprisonment as suggested by Mr Boyton.

This must then be reduced by one-third to reflect the defendant’s guilty plea. This results in a sentence of 12 months’ imprisonment on Count 2.

I then have to give consideration to the totality principle in order to arrive at a correct overall sentence. This is particularly so in the present case: for even if the defendant had been convicted of the more serious offence of trafficking on Count 2, the quantity of narcotics in the two counts would be combined to achieve a just overall sentence.

HKSAR v Or Wai-tong, CACC 250/2009 (Judgment dated 3 December 2009) is Court of Appeal authority that, in the circumstances, the sentence on Count 2 should be ordered to be served wholly concurrently with the sentence on Count 1, and I will so order.

Defendant, can you stand up please?

On Count 1 of trafficking in a dangerous drug, you are sentenced to 16 years and 2 months’ imprisonment.

On Count 2 of possession of dangerous drugs, you are sentenced to 12 months’ imprisonment.

The sentence on Count 2 is to run concurrently with the sentence on Count 1. This results in a total sentence of 16 years and 2 months’ imprisonment.