HKSAR v. CHAK SIU LAM, BERNARD

HCCC 18/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 18 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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Background and the facts

On 16 January 2017, the defendant pleaded guilty in the Eastern Magistrates Court to one count of trafficking in a dangerous drug. This morning, he confirmed the plea before me and accepted the Summary of Facts.

Briefly, on 19 April 2016, the defendant was seen by the police walking out of his rented room in a guesthouse. He was stopped and searched. As a result, a metal box was found in his shirt pocket. Inside the box were 10 plastic bags which contained the drug particularised in the count. That is a total of 14.22 grammes of a crystalline solid containing 13.95 grammes of methamphetamine hydrochloride. The police then gained entry into the room and found on top of a table, inter alia, a digital scale, a plastic bag containing bundles of resealable plastic bags and a box of aluminium foil.

The defendant was arrested and under caution, the defendant admitted that the ‘Ice’ was his. Subsequently, the defendant claimed that he had purchased the drug from a friend for his own consumption, whereas the digital scale and the plastic bags seized were used to control his daily consumption.

The estimated retail value of the drug seized was around HK$4,300.

Mitigation

The defendant is aged 36, divorced, with one son who is living with the defendant’s parents. He was educated up to Secondary 3 level. At the time of arrest, it was said that the defendant was a barbecue site worker earning about HK$13,000 per month.

The defendant has 20 previous criminal convictions including seven robbery-related convictions, six theft convictions and five possession of a dangerous drug convictions. He was last sentenced to 8 months’ imprisonment for the offence of possession of a dangerous drug on 22 August 2016. He committed this offence after the present offence, when he was on bail. ‘This offence’ of course refers to the possession of a dangerous drug which I have just mentioned.

In mitigation, Mr Tse for the defendant, submitted that about one-third to one-quarter of the drug seized was for the defendant’s own consumption. Having heard Mr Tse’s initial submissions on this, I indicated to him that, at that stage, I was not inclined to accept the defendant’s claim that part of the ‘Ice’ in question was for his own consumption. I asked Mr Tse if he would further substantiate the defendant’s claim. In reply, Mr Tse advanced the following factors for the court’s consideration.

Firstly, it was evident from the defendant’s previous conviction records that he was a drug addict. Secondly, the quantity and the value of the drug seized was not that large. Thirdly, the defendant was urine tested positive for ‘Ice’ on 28 May 2016. And fourthly, the defendant’s immediate response following his arrest on the day in question was that the ‘Ice’ was for his own consumption.

Sentencing considerations

Firstly, concerning the defendant’s claim that part of the ‘Ice’ was for his own consumption, my observations are these. Although the defendant claimed under caution that the ‘Ice’ was for his own consumption and although it was reported that his urine test on 28 May 2016 was ‘Ice’ positive, the question remains whether part of the ‘Ice’ seized from his person on the day in question was for his own consumption.

It is of importance that the defendant was seen coming out of his premises when he was found with the ‘Ice’ on him. Further, the aluminium foil which was said to be the tool he used for ‘Ice’ consumption was found inside the premises, not on his person when he was stopped.

To suggest that the defendant might use part of the drug seized for self-consumption would mean that somehow, for some unknown reason, the defendant decided to take the drug out from his premises and carry that with him for self-consumption when he was away from his home premises. It would also mean that on that day, the defendant had with him some of the ‘Ice’ for his self-consumption when the aluminium foil was not with him, but somehow he would find a means to consume the ‘Ice’ somewhere else.

In the absence of any relevant evidence on this, I completely reject this claim that one-third or one-quarter of the drug seized was for his own consumption. Even if it might be that the defendant would have a small amount of the ‘Ice’ for consumption, no doubt, possession of a dangerous drug itself carries with it a term of imprisonment. Therefore, in this case, I do not consider this self-consumption claim would meaningfully affect the sentence and I do not see any basis for reduction because of this claim, see HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69.

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’, the revised term is one of 7 to 11 years’ of imprisonment for this band. Having considered the amount of ‘Ice’ involved and the facts of this case, I am going to adopt a starting point of 7 years and 3 months. That is 87 months in total.

The defendant pleaded guilty and he would receive a one-third reduction in sentence. Other than this, there is nothing which would warrant any further reduction in sentence.

Eighty-seven months reduced by one-third is 58 months’ imprisonment. Therefore, I order that the defendant is to serve a term of 58 months.

Ms Chan, about items 12 and 13.

MS CHAN: Yes.

COURT: So he is now serving a total term of 20 months’ imprisonment for...

MS CHAN: Yes.

COURT: ...those two offences.

MS CHAN: I believe that that would be the case. Yes.

COURT: Starting from 19 July 2016. Is that the situation?

MS CHAN: Yes, that was the date of sentence though.

COURT: Right.

MS CHAN: Yes.

COURT: Yes, I understand. Right. So let me put it this way. He is now serving a total term of 20 months’ imprisonment for the two offences itemised in 12 and 13 of his record.

MS CHAN: Yes.

COURT: The sentencing date of which –- no, the sentencing dates are respectively July and August of 2016.

MS CHAN: Yes, that is correct.

COURT: I see. That is confirmed, Mr Tse, right?

MR TSE: Yes, my Lady.

COURT: I note that the defendant is now serving a total term of 20 months’ imprisonment for the offence of possession of false instruments and possession of a dangerous drug. He committed those offences after the present offence. In other words, all these offences are separate and distinct incidents. In principle, those sentences, that is the total term of 20 months and the current term of 58 months, should run consecutively. However, having considered the totality principle, I order that 3 months of the current term is to run concurrently with his 20 months’ imprisonment, the rest to run wholly consecutively.