HKSAR v. LAM KWOK ON

HCCC105/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 105 OF 2012

-----------------

---------------------------------

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

---------------------------------

COURT: The defendant, Mr Lam Kwok-on, faces one count of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

The particulars of the offence are that the defendant on or about 20 October 2011 at Mok Cheong Street, To Kwa Wan, Kowloon in Hong Kong unlawfully trafficked in a dangerous drug, namely 13.61 grammes of a crystalline solid containing 13.53 grammes of methamphetamine hydrochloride.

He pleads not guilty to the charge and is acquitted of the charge after trial by a jury but he is convicted of the lesser offence of possession of a dangerous drug.

Undisputed Facts

On 20 October 2011 at about 00.13 hours the defendant was stopped and searched by the police at Mok Cheong Street, To Kwa Wan. The police found from the right front trouser pocket of the defendant a cigarette bag which contained a transparent re-sealable plastic bag. Inside the transparent re-sealable plastic bag the police found the dangerous drug particularised in the charge which were 13.61 grammes of a crystalline solid containing 13.5 grammes of methamphetamine hydrochloride, commonly known as Ice.

On being arrested and cautioned for the offence of trafficking in a dangerous drug, the defendant said that the bag of Ice was for his own consumption. In a video-recorded interview conducted subsequently the defendant repeated that the Ice was for his own use.

Criminal Record

The defendant has 13 previous convictions of which two were dangerous drug related which took place in 1995 and 2010. He was last convicted of an offence of wounding or inflicting grievous bodily harm on 22 November 2010 for which he was sentenced to six months’ imprisonment.

Drug Addiction Treatment Centre Report

According to the Drug Addiction Treatment Centre report the defendant is a drug addict, having been addicted to Ice since 2005. He inhaled Ice daily costing him about $300 on each occasion.

Regarding the background of the defendant, the report states that he was brought up in a working class family and received education up to Form 1 level. He is married with two daughters, aged 6 and 5. He has no steady job and has only worked intermittently. He mainly relies on Comprehensive Social Security Assistance.

The Correctional Services Officer compiling the report is of the view that the defendant is suitable for admission to Drug Addiction Treatment Centre.

Mitigation

The counsel for the defendant tells the court that the defendant understands and agrees to the contents of the Drug Addiction Treatment Centre report which finds that the defendant is suitable for admission to the centre for treatment.

The counsel says that for the offence of possession of a dangerous drug in the present case, the starting point should be one of 9 to 18 months’ imprisonment. He emphasises that there was no risk of the defendant selling the dangerous drug and there was no latent risk of the dangerous drug falling into the hands of other people.

According to the counsel, the wife of the defendant has been imprisoned and the defendant is required to look after the two daughters.

The criminal record of the defendant in respect of dangerous drugs is not the worst type. The counsel asks the court to treat the defendant leniently.

Sentence

The amount of Ice in the present case is 13.53 grammes. If the defendant had been convicted of trafficking the Ice, the starting point, according to the sentencing guidelines laid down in AG v Ching Kwok Hung [1991] 2 HKLR 125, would have been within the band of 7 to 10 years, and more precisely, would have been seven years two months’ imprisonment.

The court, of course, bears in mind that the defendant has been convicted of simple possession of the Ice and the court has to sentence him accordingly.

It is said in the case of HKSAR v Mok Cho Tik, CACC165/2000 that the starting point for mere possession of a quantity of dangerous drug which a bona fide user would normally have in his possession should be in the range of 12 to 18 months’ imprisonment.

The quantity of Ice in the present case, though not substantial, is by no means small. The court does not agree with the submission of the counsel for the defendant that there was no risk of the defendant selling the Ice and no latent risk of the Ice falling into the hands of other people.

Bearing in mind that the defendant has been relying on Comprehensive Social Security Allowance of about $6,000 a month and that consuming Ice was an expensive habit, the financial conditions of the defendant would by no means be good. With such a fairly large quantity of Ice in the hands of the defendant, there was a real risk of the defendant selling the Ice to other people and a substantial latent risk of the Ice falling into the hands of others. The court must take this into consideration in deciding the sentence to be imposed.

The court is of the view that treatment in the Drug Addiction Treatment Centre is not an appropriate sentence. An immediate custodial sentence is inevitable. Having considered all the relevant circumstances, the court adopts a starting point of 18 months’ imprisonment.

Taking into account of the substantial risk of the Ice falling into the hands of other people, the starting point is enhanced to 2 years 3 months’ imprisonment.

As the defendant has indicated at the outset that he had had the Ice for his own consumption, the court treats him as having pleaded guilty to the charge of possession of a dangerous drug. Giving him credit for that, the court sentences him to 18 months’ imprisonment.