HKSAR v. LUM WAI MING (aka LAM WAI MING)

DCCC 1118/2022

[2023] HKDC 1824

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1118 OF 2022

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REASONS FOR SENTENCE

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1.  In this case, defendant pleaded guilty to, and is convicted of, one count of “Trafficking in Dangerous Drugs”. According to the prosecution’s Summary of Facts (which the defendant admitted in court), the defendant was intercepted sometime in the early hours on the 9^th day of June by the police in Tung Choi Street. During the attempt to stop the defendant, the latter threw a packet away. It was revealed subsequently that the packet contained a total of 11.1 grammes of heroin hydrochloride.

2.  The police also found inside the defendant’s shoulder bag 15 transparent resealable plastic bags in four different groups with different numbers written on it.  They appeared to indicate the quantity of drugs contained therein.  There were in all 5 grammes of substance with 4.97 grammes of methamphetamine hydrochloride.  Upon further search, the police found in the defendant’s bag seven tablets of midazolam and four packets of heroin, the total purity of which came up to 0.78 grammes of heroin hydrochloride. 

3.  The defendant admitted those dangerous drugs were all for the purpose of trafficking.  The total quantity (including the heroin hydrochloride contained in the bag he threw away and those in his backpack), added up to 11.88 grammes of heroin hydrochloride, 4.97 grammes of methamphetamine hydrochloride, and seven tablets containing a total of 0.09 grammes of midazolam.

4.  Trafficking in dangerous drugs has been considered serious offence.  There is no room for argument that I should not follow the guidelines set out by the Court of Appeal.  Counsel for defence has set out very clear explanation as to the proper sentences, the corrections of which has not disputed by the prosecution. 

5.  Since the present case involved more than one kind of dangerous drugs, there are different approaches as explained by the Court of Appeal.  By the “individual approach”, each type of dangerous drug are considered separately and after adding them up, it would result in a sentence order of 9 years and 10 months.

6.  In the “combined approach” (by taking into account all the dangerous drugs and consider them as a whole), the Court of Appeal has devised different tests in order to gauge the reasonableness of such an approach. 

7.  The trafficking in midazolam is minimal.  The Court of Appeal allows the trial judge the discretion to adopt a proper sentence.  In the present case, in view of the likely sentence for trafficking hydrochloride, I decide to ignore the seven tablets of midazolam in the sentence order. 

8.  According to the absurdity test, if all the drugs were considered to be heroin, the total sentence would come up to 5 years and 6 months. 

9.  The second part of the absurdity test is to consider all the dangerous drugs as methamphetamine hydrochloride and the sentence would come up to 7 years and 5 months. 

10.  The second test (“the conversion test”)  involves treating all the dangerous drugs as heroin, and the sentence would be 5 years and 10 months.  If all were considered ‘Ice’, the sentence should be 7 years. 

11.  The third test is the one that is called “ratio test”; it is to consider the drugs as a whole and the their percentages.  In this case, heroin took up 70 per cent of the drugs, ‘Ice’ for the rest, and the sentence should come up to 6 years and 1 month.

12.  Sentencing is not a purely mathematical exercise; the tests indicate the proper sentence should be from 5 years to 7 years.  I will adopt an approach favourable to the defendant and use 6 years as the starting point.  This will be reduced to 4 years to take into account of his guilty plea.

Mitigation

13.  I turn to consider the personal circumstances of the defendant to see whether there are any other factors which might justify further reduction of the other sentence.  The defendant is 55 years old.  He lives alone.  Before his arrest, he used to take care of his father by visiting and cooking for him on a daily basis.  He has no more contact with his divorced wife and son.  He also has some health issues.  He had no fixed employment.

14.  The defendant has been convicted of 40 different counts in the past, 15 of which were related to dangerous drugs, two of which were exactly the same kind of offence as the present one, namely, dangerous drugs trafficking.

15.  While this court will not punish him again for his previous transgressions, there is no room for exercising any discretion of mercy.  He is a grown man.  He has a lot of previous convictions.  Therefore, the defendant is sentenced for the present offence 48 months’ imprisonment to take effect immediately.