HKSAR v. LAM KA WING

HCCC 201/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 201 OF 2017

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REASONS FOR SENTENCE

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Introduction

1.  The defendant has pleaded guilty at the earliest opportunity to the offence of trafficking in a dangerous drug on 22 December 2016, consisting of 53.5 g of a crystalline solid containing 52.2 g of methamphetamine hydrochloride, commonly known as Ice.  The estimated street value of the drugs at the time of the offence was $17,869. 

The brief facts

2.  The brief facts giving rise to the offence are that in the evening of 22 December 2016, police officers stopped and searched the defendant in Peace Street, Kowloon City.  Inside his coat pocket, the police officers found 4 plastic bags containing the drugs in question.  After he was arrested and cautioned, he said that the Ice was for his own consumption.  In a subsequent video recorded interview, he claimed that he purchased the drugs for $6,000 and that it was enough for his personal consumption for one month.  He explained that as an addict he consumed 0.5 g of Ice a day.  He also confirmed that he was a causal transportation worker earning $400 to $600 a day. 

3.  The defendant’s residence was searched by the police officers but no items or paraphernalia for the consumption of drugs were found.

4.  The defendant by his plea of guilty admits and accepts that he possessed the drugs seized for the purpose of trafficking.

The defendant’s background and mitigation

5.  The defendant is 42 years old.  At the time of the offence, he was single, living in a unit in Mongkok.  He has a teenage daughter and a young son.  The teenage daughter is being cared for by the mother.  The young son is from a relationship with a former girlfriend.  The young son was up until recently cared for by his mother but is now in a care home.  I am told he was seeing his children on a regular basis.  His parents divorced a long time ago.  I am informed that he keeps contact with them. 

6.  The defendant left school at an early age and worked as a transportation worker, earning a daily salary of $400-$600.  I am also told that he supplemented his income by working at nights as a waiter. 

7.  The defendant has a number of prior convictions.  In November 1994, when he was 19 years old, he was convicted for offences of inciting another to become a member of a Triad society and claiming to be a member of a Triad society for which he was put on 12 months’ probation. In October 2001, he was convicted for possession of drugs for which he was fined $1000.  In September 2012, he was convicted for a variety of offences, consisting of possession of offensive weapon in a public place, possession of drugs, possession of equipment for consuming drugs and various traffic offences for which he received a concurrent term of imprisonment of eight months.  In October 2013, he was convicted of possession of drugs and traffic offences for which he was ordered to attend a drug addiction treatment centre.  Lastly, in August 2015, he was convicted of conspiracy to defraud for which he was sentenced to 12 months’ imprisonment.

The issue of self-consumption

8.  In mitigation, Ms Vivian Chan, for the defendant, informs me that the defendant has been addicted to Ice since 2000.  She explains that he would usually consume the Ice by smoking it through a straw in a packet and that was why no glass bottle or other paraphernalia for consumption of Ice was found at his home. 

9.  In raising the issue of self-consumption, I asked Ms Chan if she would be providing the court with credible and reliable information or evidence in support of her submission.  She informed me that she had discussed the matter with the defendant and had clear instructions that he would not give evidence or call evidence on the issue.

10.  In such circumstances, Ms Chan made the following submissions in support of the self-consumption claim:

(1) The defendant had been addicted to Ice since 2000. He tested positive to Ice when he was arrested. The defendant had a prior history for consuming drugs. As already noted, the defendant has convictions for possession of drugs in October 2001, September 2012 and October 2013. I am prepared to accept that the defendant had an addiction to Ice prior to and at the time of his arrest.

(2) When the defendant was arrested on 22 December 2016, he had no items or related paraphernalia for consuming Ice at his residence because he would consume Ice by smoking it through a straw in a packet which he would discard. It is an admitted fact that no items or paraphernalia for the consumption of Ice were found in his residence at the time of his arrest. I am not prepared to accept this assertion made by Ms Chan on behalf of the defendant.

(3) When the defendant was arrested, he was to deliver three out of the four bags, on condition that he would be given a discount on the fourth bag which he would use for his own consumption. He was to take the bags of drugs to his home to await further instructions in relation to the delivery. I have viewed a photograph of the four bags and they contain an equal quantity of Ice. Given that they were packaged the same and the defendant was out in a public street to eventually deliver the drugs, I am not prepared to accept the assertion made by Ms Chan on behalf of the defendant.

(4) The defendant in his cautioned interview claimed that the drugs in question were for his personal consumption but in light of his submission that he was to deliver the drugs, on his case 3 out of the 4 bags, I am not prepared to accept what he has stated in his cautioned interview.

The guiding principles on self-consumption

11.  The guiding principles for a sentencing court when addressing the issue of self-consumption are set out in the Court of Appeal decision of HKSAR v Wong Suet Hau and Anor[1]at paragraph 34.

“(1) Where, after a plea of guilty to trafficking in dangerous drugs, it is suggested in mitigation, that a significant proportion of the drugs was intended for the consumption of the defendant and not for trafficking, and where it is apparent from the circumstances as a whole that the contention, if true, may well make a difference to sentence, the sentencing court should address the issue.

(2) Having regard to the dangers of the abuse of this avenue of mitigation, the judge should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the contention.

(3) In determining whether to accept the contention, the normal rules for determining the factual basis for sentence apply. The factors to be considered will include:

(a) the quantity of drugs and, if known, their value;

(b) the general circumstances, including how the drugs are wrapped, and how many wraps or packets are found;

(c) where the drugs have been discovered, whether at a residential address owned or rented in the trafficker’s own name or in someone else's name, or whether they were being carried in a public place;

(d) the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;

(e) whether the defendant is an addict or is otherwise accepted to have been an habitual user of the drug in question;

(f) the explanation given by the defendant following arrest;

(g) the defendant’s general means and his ability to pay for his drugs otherwise than by trafficking in them; and

(h) the defendant's criminal record, if any, in relation to previous drug offences.

Usually a court will be able to determine the issue from these factors without a Newton hearing (see also: Archbold：Criminal Pleading, Evidence and Practice 2002, para. 5-20).

(4) Where it is accepted that a significant proportion of the drugs were for the defendant's own consumption, it is unnecessary, save in the most exceptional case, where the division is readily quantifiable, for the sentencing judge to specify the relative amounts or proportions, except perhaps in the very broadest of terms. In such circumstances, the court should so adjust sentence as to reflect the fact that not all the drugs were for trafficking. However, in doing so, the judge should keep well in mind:

(i) the fact that possession of dangerous drugs itself carries a term of imprisonment;

(ii) the requirement to enhance sentence for simple possession of drugs to reflect, where appropriate, the ‘latent risk’ factor (see: HKSAR v Mok Cho Tik [2001] 1 HKC 261) which takes into account the risk that some of the drugs intended for self-consumption may nevertheless find their way into the hands of others.

An application of considerations (i) and (ii) may well offset much of the practical value of the mitigation, particularly with certain dangerous drugs which are commonly used amongst friends at social functions, including Ice (see: HKSAR v Lam Wai Ip (unrep., Crim App No 214 of 1997, [1997] HKLY 349) and ecstasy (see: HKSAR v Lee Tak Kwan [1998] 2 HKLRD 46 at p.52, [1998] 2 HKC 371 at p.376).”

12.  The Court of Appeal in the recent case of HKSAR v Tsoi Man Chun,[2] had occasioned to analyse and discuss the guiding principles on self-consumption in Wong Suet Hau.  McWalters JA, giving the judgment of the court, explained at paragraph 54 that an offender is only entitled to a discount for self-consumption if the judge finds that “all or a significant proportion” of the drugs were to be consumed by him.  If he does not surmount this hurdle, then he is not entitled to any discount.  He explained that as to what is a significant proportion was said in Wong Suet Hau to be of such a proportion that it would make a difference to sentence. 

13.  In the previous paragraph of the judgment, McWalters JA had summarised the matters that arise when a sentencing court is required to deal with a defendant’s claim that some or all of the drugs in which he was unlawfully trafficking were for his own consumption.  He sets out four matters:

“(i) what must be claimed, and what must be proven to the judge’s satisfaction, is that all or a significant proportion of the drugs are for the defendant’s self-consumption;

(ii) the proportion of drugs for self-consumption must be such that, if true, it may well make a difference to sentence;

(iii) in determining whether the contention is true, the normal rules for determining the factual basis for sentence apply; and

(iv) where it is accepted by the judge that a significant proportion of the drugs were for the defendant’s own consumption, it is unnecessary for the sentencing judge to specify the relative amounts or proportions except in the broadest of terms.”

14.  McWalters JA noted that if the sentencing court was satisfied that all or a significant proportion of the drugs were for the defendant’s own consumption then it will fall on the court to assess the amount of discount that it should award the defendant from the adopted starting point.  A range of 10 to 25 percent discount has been suggested in HKSAR v Chow Chun Sang.[3]

15.  Significantly and relevant to this case, are McWalters JA’s remarks on how a sentencing court should resolve a claim of self-consumption.  In the following paragraphs, he said:

“58. The statement in Wong Suet Hau that a Newton enquiry may not usually be necessary may have been misunderstood as discouraging judges from holding such an enquiry. Obviously, that was not the intention of the Court of Appeal for it specifically said that in resolving such a claim “the normal rules for determining the factual basis for sentence apply.” Whether such an enquiry is necessary in order for the judge to determine the claim of self-consumption will inevitably be a case sensitive matter. All that can be said is that once a credible claim is advanced it must be properly resolved through a process that is fair to the defendant, whether that be through a formal Newton enquiry or simply from exchanges between Bar and Bench and on the material placed before the court.

59. In whatever form this process takes place, it will necessarily require the judge to consider the risk that, notwithstanding the defendant’s intention that all or a significant proportion of the drugs will be consumed by him, some of the drugs might end up being trafficked. The greater the risk, the more it will impact on the proportion of drugs that the defendant claims he would have consumed.”

16.  The critical issue arising from the Court of Appeal’s decisions on self-consumption is the need for the claim of self-consumption to be proven to the sentencing court’s satisfaction.  As stated in Wong Suet Hau there is a real danger of abuse of this avenue of mitigation, and a sentencing court must have a proper factual and evidential basis in accepting the contention that “all or a significant proportion” of the drugs were for the defendant’s own consumption. 

17.  Mere assertions from the bar table, unless agreed or not in dispute or contentious, will generally not suffice.  It is therefore important for a defendant in making a claim of self-consumption to put before the court credible and reliable information and material in an acceptable form. 

Finding on self-consumption

18.  Ms Chan has submitted that this was the first time the defendant was involved in trafficking of drugs and committed the offence out of greed. Whilst I am prepared to accept that the defendant had an addiction to Ice, and that he was likely to receive or purchase some Ice for his habit, I am not prepared to accept that a significant proportion of the drugs were for that purpose. From all the facts and circumstances, I am satisfied that the defendant was transporting the four packets in order to deliver them to someone.

19.  I am therefore not satisfied that a significant proportion of the Ice was intended to be or would be consumed by the defendant.  I will therefore not grant any discount to the sentence for self-consumption.

The sentence

20.  The narcotic content of Ice of 52.2 g falls within the band of 10 to 70 g where the sentence after trial ranges from 7 to 11 years’ imprisonment according to the tariff case of HKSAR v Tam Yi Chun [2014] 2 HKLR 125. I therefore adopt a starting point of 9 years and 9 months’ imprisonment, which I reduced by one third for the defendant’s guilty plea to 6 years and 6 months’ imprisonment.

21.  Accordingly, the defendant is sentenced to 6 years and 6 months’ imprisonment.