HKSAR v. LAM WAI CHI

HCCC 390/2018

[2019] HKCFI 778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 390 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Background and the Facts

The defendant pleaded guilty to one charge of trafficking in a dangerous drug at the Eastern Magistrates’ Courts on 10 December 2018 and was committed to the Court of First Instance for sentence. This morning, she confirmed her plea and accepted the summary of facts.

Briefly, on 9 April 2018, the defendant and another person were on board a taxi. When the taxi was about to leave Tai Wo Hau Estate, the police intercepted it and the defendant and her companion were asked to get off the taxi. Upon searching the defendant, two pieces of tissue paper with adhesive tapes were found at the waistband of the defendant’s trousers, inside which were concealed three plastic packets containing 40.3 grammes of a crystalline solid containing 30.2 grammes of methamphetamine hydrochloride.

Under caution, the defendant claimed that the drug was for her own consumption. This assertion was repeated when she was interviewed by way of video-recording afterwards. She also claimed that the drug would be sufficient for her consumption for 17 to 18 days. However, she admitted that she did not know the weight and the price of the drug and she had never opened the tissue papers to have a look. She said that it was only because the police had told her that there was “Ice” inside did she then know that it was “Ice”. The defendant also confirmed that she was unemployed and was receiving CSSA at the time. She said she had no money on her and was waiting for a friend to come and pay for the taxi fare.

The estimated retail value of the drug was about HK$28,000.

The admitted facts disclosed that amphetamine, benzodiazepam and opiate were detected in the defendant’s urine specimen taken on 12 April 2018.

The Defendant’s Background and Mitigation

The defendant was born in Hong Kong and is aged 50. She has attained Form 4 level but was unemployed at the time of her arrest. The defendant has got 27 previous criminal convictions. 10 of those were drug-related offences, including one of trafficking in a dangerous drug, in respect of which she was sentenced in June 2005 to 6 months’ imprisonment. The defendant has got no fixed place of abode.

In the course of mitigation, Mr Chau for the defendant, handed up a letter written by Ms Law of The Hong Kong Christian Kun Sun Association Limited on behalf of the defendant. In short, the defendant was described to have expressed genuine remorse and a determination to turn over a new leaf following her conversion to Christianity.

As to the drugs in question, Mr Chau said his instructions were that a small amount of the “Ice” would be for the defendant’s own consumption. In support of this claim, Mr Chau invited the court’s attention to the positive result of drugs of the defendant’s urine test conducted shortly after her arrest and also the defendant’s past drug-related offences convictions.

Since the summary of facts clearly pointed to a case of someone caught having in her possession the drugs for the purposes of unlawful trafficking, especially because the defendant said under caution that she did not know what the drug was and did not know how much it was worth, nor its weight, I told Mr Chau that I was, at that stage, not prepared to accept that the defendant had any of the drugs for her own consumption.

I also pointed out to Mr Chau that the positive urine test results per se were not determinative of the claim for self-consumption, albeit that it was certainly one of the factors to be taken into account by the court when deciding whether any significant portion or any portion of the drugs in question might be for the defendant’s own consumption.

Similarly, the fact that the defendant has got previous possession of a dangerous drug conviction is not of any assistance, if there is nothing more to support the claim for self-consumption based on the particular facts in question. If not, it would mean that a previously convicted drug addict who has taken drugs on the day or shortly before his arrest could easily get a sentence reduction based on a mere assertion for self-consumption. This is not what the authorities in this area were about as I understand them.

The central issue is not whether the defendant is a drug addict nor whether the defendant has got any previous possession of a dangerous drug conviction, but whether it might be true that the defendant had any portion of the drugs in question for self-use.

If it were otherwise, and if reductions were to be generally given to a drug addict whenever a claim for self-use is uttered, it would mean that a drug addict defendant would be better off than a defendant of previous good character or a young defendant, because, even in the case of a young defendant, unless extreme youth is shown, that itself is not a mitigating factor in a trafficking in a dangerous drug offence.

Coming back to the present case, after I made known my preliminary views to the defence, I asked Mr Chau if there would be further evidence adduced before me to support the defendant’s claim for self-consumption. Mr Chau confirmed that the defendant would not be giving evidence in the witness box.

Tariffs and Sentencing Guidelines

The revised tariffs for trafficking in “Ice” were laid down in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For trafficking between 10 and 70 grammes of “Ice”, a term of imprisonment of 7 to 11 years is called for.

Sentencing in this Case

Having considered the amount of “Ice” involved and the facts of this case, I am going to adopt a starting point of 8 years and 3 months. That is 99 months. The defendant pleaded guilty at the committal stage, she would be given the full one-third reduction for her plea.

As to the defendant’s claim that there was a small amount of the drug for her own use, for the following reasons, I completely reject that claim.

Firstly, the defendant admitted or claimed that she did not know what was inside the tissue paper wrappings and did not know the weight nor the price. Although Mr Chau, in the course of mitigation, submitted that the defendant might not be telling the whole truth there, without any evidence before me, I do not now accept the defendant’s claim that a small amount of the drug would be taken from those bags as her reward for the delivery of the drugs.

Secondly, the drugs were packed in three different plastic bags and were concealed together with adhesive tapes at the waistband of the defendant’s trousers. Again, in the absence of any evidence, I do not accept that the defendant had an earlier agreement to have a small amount somehow taken from those three bags and handed over to her there and then upon delivery as the reward for her delivery of the drugs.

Thirdly, the defendant was jobless at the time. If it was asserted, which was not the case here, that she somehow got the drugs, purchased it for her own consumption, then clearly she did not have such financial means.

In all these circumstances, I therefore completely reject that the defendant would have any amount of the drugs in question for her own use as claimed. In short, I do not consider the defendant to be entitled to any reduction based on this claim for self-consumption.

Now, even if it might be that the defendant would have a small amount of the drugs for her own consumption, as pointed out in the case of HKSAR v Wong Suet Hau, simple possession of a dangerous drug is itself an offence which would call for a term of imprisonment. In the case of this defendant, there is also the latent risk factor to be taken into account. Therefore, even assuming that there might be a small amount of the drugs which the defendant kept for her own consumption as a reward, that would not affect the sentence in this case in any way.

Hence, other than the defendant’s plea, there is nothing in this case which would warrant any further discount in sentence.

In respect of the defendant’s past records, having considered all the relevant factors, I take the view that no enhancement is warranted in this case.

99 months reduced by one-third is 66 months’ imprisonment.

I therefore impose a term of 66 months for the charge of trafficking in a dangerous drug, to which the defendant has pleaded guilty.