HKSAR v. LAM YUK LEE DONNY

HCCC 18/2024

[2024] HKCFI 1948

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 18 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of possession of dangerous drugs and one count of trafficking in dangerous drugs before Magistrate Tsui May-har and was committed to the Court of First Instance for sentence. He confirmed his pleas and admission to the summary of facts before me and his convictions were duly recorded.

2.  Particulars of count 1 are that the defendant on 14 July 2022, at the staircase of 21^st floor, Block D, Connie Towers, No.147 Hong Ning Road, Ngau Tau Kok, had in his possession a dangerous drug, namely 1.22g of a crystalline solid containing 1.21g of methamphetamine hydrochloride (commonly known as the dangerous drug ‘ice’).

3.  Particulars of count 2 are that he on the same day, at flat 2106, 21^st floor of the same premises, unlawfully trafficked in dangerous drugs, namely 53.84g of a crystalline solid containing 53.57g of ‘ice’; and 3.56g of a solid containing 3.2g of cocaine.  

SUMMARY OF FACTS

4.  During a Police anti-narcotics operation on 14 July 2022, the defendant was seen walking close to Flat 2106 (“the flat”), Block D of the charge address at about 9:57pm.

5.  Police officers laying in ambush at the rear staircase outside the flat intercepted the defendant, declared their Police identity and brought him to the staircase for investigation.  

6.  Since the defendant appeared nervous and had put his hands inside his pants’ pockets, Police officer proceeded to search him.  Upon search, a plastic bag with 1.22g of a solid containing 1.21g of ‘ice’ was found inside his underwear.  This is the subject matter of charge 1.

7.  The defendant was arrested and said under caution that the drugs were for his self-consumption.

8.  The defendant was brought inside the flat.  Upon search, the following were found:

Inside a cabinet in the kitchen on the 1^st floor of the flat:

(1)  1 pink basket with a red box containing 9 plastic bags, with a total of 5.08g of a solid, which contained 5.02g of ‘ice’.

Inside a refrigerator in the washroom on the 2^nd floor of the flat:

(2)  1 white paper bag with 1 transparent box inside, containing:

a. 5 plastic bags with a total of 17.5g of a solid containing 17.3g of ‘ice’;

b. 3 plastic bags with a total of 3.56g of solid containing 3.20g of cocaine;

(3)  2 electronic scales;

(4)  1 green pole; and

(5)  A large number of empty transparent re-sealable plastic bags.

9.  The defendant was arrested for the offence of trafficking in dangerous drugs.  Under caution, he claimed that the ‘cold things’ were for his self-consumption, and that his family knew nothing about them.

10.  The Police continued with the search of the flat.  From inside a wardrobe in the master bedroom on the 1^st floor, they found a red purse with 17 plastic bags inside, which had a total of 30g of solid, containing a total of 30g of ‘ice’.

11.  The defendant was cautioned again, and he said that the ‘cold things’ were for his self-consumption, and that his family knew nothing about them.

12.  Police dog was engaged in the search of the flat, and on a shelf in the storage room on the 2^nd floor, they found a plastic bag with a total of 1.26g of a solid containing 1.25g of ‘ice’.

13.  Again, the defendant said under caution that the ‘cold things’ were for his self-consumption.  

14.  All the dangerous drugs found inside the flat together form the subject matter of count 2.

15.  As at July 2022, the estimated street value of 53.84g of ice was $32,681 (at $607 per gramme); and that of 3.56g of cocaine was $3,649 in powder form (at $1,025 per gramme), or $5,931 in crack form (at $1,666 per gramme).

16.  Although the defendant had in the subsequent video recorded interviews claimed that all the drugs found by the Police on that day were for his self-consumption, he had, by reason of his admission to the summary of facts which forms the basis of his conviction, now accepted and admitted that at the material time, he knowingly had the 1 plastic bag of ‘ice’ in his possession on the 21^st floor outside the flat; and that he knowingly possessed all the dangerous drugs found inside the flat “for the purpose of unlawful trafficking at the flat.”

PREVIOUS CONVICTIONS

17.  The defendant has 5 conviction records from 4 court appearances.  The first was in 1994 for possession of dangerous drugs when he was fined $500.  The second was for theft in 1995, again fined $500.

18.  His third and fourth convictions are dated 21 September 2005, respectively for trafficking in dangerous drugs and possession of dangerous drugs.  He was sentenced to 8 years’ imprisonment in total.

19.  He was last discharged from prison on 20 December 2014, having served a six year sentence imposed by the Court of First Instance in August 2011 for one count of trafficking in dangerous drugs, which is his latest conviction.  The present case is his third conviction for trafficking in dangerous drugs and possession of dangerous drugs. 

BACKGROUND AND MITIGATION

20.  The defendant was born in Hong Kong in 1968 and is now 55 years old.  He was educated here up to primary level, and was working as a supervisor in a recycling company at the time of his arrest on 14^th July 2022, earning $40,000 per month.  The defendant’s 82 years old mother lives alone in a public housing estate, while the defendant lives with his girlfriend, Ms. Chu, together with their 4 year old daughter at the flat.

21.  The defendant wrote in his mitigation letter that he is remorseful, and would like to apologize to his wife and daughter for putting them in such a difficult situation.  He promises not to commit any criminal offences in future and will turn a new leaf, to try his best to become a good husband and father, asking for a lenient sentence.  

22.  The defendant’s employer at the time of his commission of the offences wrote to tell the court about the defendant being a good employee, responsible and hardworking.  From what he could see, the defendant is also a good husband and father.

23.  Mr. Cheng visited the defendant’s home and saw that since the defendant’s remand, his daughter had changed from being her usual cheerful self to being isolated and uncommunicative.  

24.  Mr. Cheng intends to support the defendant and his family by keeping him as a member of his staff, so that he can resume work upon serving his sentence.  

SENTENCE

Count 1

25.  The maximum sentence on conviction upon indictment for possession of dangerous drugs is a fine of $1,000,000 and to imprisonment for 7 years.  

26.  Since the defendant is going to be sentenced in the same proceedings for the offence of trafficking in dangerous drugs to imprisonment for more than 9 months, s.54A of the Dangerous Drugs Ordinance, Cap.134 does not apply, and this court need not first consider a DATC report before sentencing him on count 1.

27.  In HKSAR v Mok Cho Tik [2001] 1 HKC 261; CACC 165/2000, the Court of Appeal said the following when considering sentences for simple possession of dangerous drugs:

“17. Sentencing is an art, and we emphasize that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case. We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be. The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”

28.  For the 1.21g of ‘ice’ in count 1, on the basis that the defendant was a bona fide user, I find that the starting point should be 12 months’ imprisonment. 

29.  The defendant is a persistent offender with this being his third simple possession conviction.  Having said that, his last similar conviction was in 2005, some 19 years ago.  For him being a repeat offender, but taking into account the lapse of time between these convictions, I will exercise my discretion and enhance his sentence by 2 months to that of 14 months. 

30.  The defendant is granted the full one-third discount and sentenced to 9 months’ imprisonment on count 1.

Count 2

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

APPLYING HERRY JANE YUSUPH

32.  The guidelines and 6-step approach as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[1], as well as the approach to sentencing trafficking cases involving more than one type of dangerous drugs as set out in HKSAR v Islam S M Majharul [2020] HKCA 300; CACC 67/2019 are applied as follows.

Step 1: The applicable guideline tariff bands

33.  The applicable guideline tariff bands for 53.57g of ‘ice’, and 3.2g of cocaine is that of ‘7 to 11 years’, and ‘2 to 5 years’ respectively. 

Step 2: The defendant’s role and culpability

34.  Based on the facts that the defendant had admitted to, the only reasonable inference is that he held the role of a storekeeper. 

35.  There is no factual basis to find that he was engaged in the distribution of drugs to the buyers, or a direct trafficker.  As such, he is to be sentenced as a storekeeper. 

Step 3: The relevant band within the guidelines

36.  Count 2 involves the defendant trafficking in both ‘ice’ and cocaine, with the cocaine forming 5.6% of the total narcotic contents.

37.  Of the two, ‘ice’ is regarded by the sentencing court as being the slightly more serious drug as indicated by the higher starting point for quantity of up to 10g. 

38.  Based on quantity and potency, ‘ice’ is used as the base drug to calculate the starting point of the two drugs.

39.  The arithmetical application of the relevant bands to 53.57g of ‘ice’ and 3.2g of cocaine would lead to a starting point of 9 years 11 months’ imprisonment and 3 years’ imprisonment respectively.

40.  0.1g of ‘ice’ would attract a sentence of 3 year’s imprisonment.  If this converted 0.1g of ‘ice’ is added to the actual 53.57g of ‘ice’, the combined quantity is 53.67g, which would result in a starting point of 9 years 11 months.

41.  Applying the absurdity test, any combined sentence above 10 years 1 month could be regarded as absurd.

42.  Applying the ratio test, the sentence would be 10 years. 

43.  Taking the results of the tests as well as all the circumstances into account, I would increase the starting point of 9 years 11 months’ imprisonment by 1 month to 10 years’ imprisonment as the combined starting point for the two drugs.

Step 4: Aggravating factors

44.  It is trite law that trafficking in more than one type of dangerous drugs is an aggravating factor.  Having considered the relatively small quantity of cocaine, I will enhance the combined starting point by 3 months, taking the notional starting point to 10 years and 3 months. 

45.  Additionally, this is the defendant’s third conviction for trafficking in dangerous drugs, with the last one being a 6 year sentence passed in August 2011.  For him being a repeat offender, but bearing in mind the time gap between his last and present conviction, I will enhance his sentence by 3 months, taking the notional starting point to 10 years 6 months. 

Step 5: Mitigating factors

The Issue of Self-Consumption

46.  It is Mr. Ken Ng’s submission that some of the drugs in count 2 were for the defendant’s self-consumption.  He says the defendant was consuming about 1g of ‘ice’ per day, which was what the defendant had told the Police during their investigation.

47.  Mr. Ng refers to the defendant’s monthly income of $40,000, suggesting he was able to finance his drug usage.

48.  He also refers to the urine test result of the defendant’s urine sample taken shortly after his arrest, which showed a positive reaction to amphetamine, suggesting that he had consumed ‘ice’ prior to his arrest, perhaps not on the same day, perhaps even the day before. 

49.  The defendant also has 2 earlier convictions for possession of dangerous drugs, again supporting the assertion of him being a drug addict. 

50.  Mr. Ng says that on the day of the defendant’s arrest, he was going to consume the drugs found on his person.  He did not use it at home because there were two young children there.  Upon taking instructions, Mr. Ng told the court that the defendant had the ‘ice’ on his person for his consumption, but when he was outside he got called back by his wife to look after the children at home, and so he returned home with the drug still on his person, unconsumed.

51.  Mr. Ng suggests that there is ample evidence indicating that the defendant was an addict and user of ‘ice’, and that part of the drugs found in the flat was for his self-consumption.

52.  I noticed that Mr. Ng did not say how much of the ‘ice’ in count 2 was for his self-consumption.  Mr. Ng was also silent on what the defendant had intended to do with the dangerous drugs that were not for his self-consumption. 

53.  Even if one accepts that the defendant was a drug user, the drugs found on the defendant’s person was 1.22g of solid with 1.21g of ‘ice’, which would be the right amount that the defendant would be consuming daily, thereby further supporting the fact that all the drugs in the flat were for trafficking purpose.

54.  Most importantly, the defendant had confirmed before the magistrate, and today before me, that he accepts and admits that he knowingly possessed all the dangerous drugs found inside the flat “for the purpose of unlawful trafficking at the flat.”

55.  I related the above observations to Mr. Ng and told him that I may not be willing or able to accept the defendant’s assertion that some of the drugs in the flat were for his self-consumption, and invited him to take instructions from the defendant to see if he would like to enter the witness box to clarify matters.

56.  Mr. Ng took instructions and informed the court that the defendant had elected not to do so.

57.  That being the case, for the observations and analysis above, I refuse to accept that any of the dangerous drugs inside the flat that the defendant was in possession of was for his self-consumption. 

58.  Despite the moving letter that the defendant’s employer had written and the support shown, given the circumstances of the case, I find that the only mitigating factor is the defendant’s timely guilty plea.

Step 6: Totality

59.  Bearing in mind the clarification of Step 6 in the case of HKSAR v Lee Ming Ho [2024] HKCA 150; CACC 130/2019, I find that despite the fact that the notional starting point of 10 years and 6 months’ imprisonment might very well have a crushing effect on the defendant, I find that it is the proper sentence to impose upon the proper application of the guidelines. 

60.  Taking a step back, I find that such a sentence in the circumstances is a fair, just and balanced sentence.  As such, there is to be no reduction of sentence under this step.

61.  The sentence after granting the full one-third discount on count 2 is 7 years’ imprisonment. 

FINAL SENTENCE

62.  Given the proximity in time and location of his commission of the two offences, bearing in mind that even if the 1.21g of ‘ice’ in count 1 was added to the drugs in count 2, the pre-enhancement starting point would still be 10 years, and not overlooking the lengthy sentence the defendant is facing in count 2 alone, I will order the two sentences to be served concurrently. 

63.  The final combined sentence for the 2 offences after plea is, therefore, 7 years’ imprisonment.