HKSAR v. LEE KAR YIN

DCCC 443/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 443 OF 2016

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REASONS FOR SENTENCE

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1.  The defendant, a Hong Kong permanent resident and a woman in her late 30s, pleaded guilty before me to 4 counts of offence:

Charge1- Possession of dangerous drugs (4.37 g of a crystalline solid containing 4.24 g of methamphetamine hydrochloride, commonly known as ‘Ice’);

Charge 2- Possession of forged identity cards (two cards- one in the name of Wong Yik Cheong Anthony and the other Tsui Wing Sze Winnie);

Charge 3-Possessing false instruments (two HSBC bank statements- one in the name of Wong and the other Tsui, the same two persons as mentioned in charge 2);

Charge 4-Failing to surrender to custody (absconded for 6 days before being re-arrested).

2.  The facts are on the night of 19^th November 2016, a party of police came round to a hotel in Nathan Road with a search warrant, having gained access to a room there, and they discovered the defendant was inside together with two other females.

3.  Upon a bodily search, the drugs as particularized in charge 1 were found by the officers underneath the defendant’s underpants where they were kept in 3 bags inside a plastic bag; inside the defendant’s handbag, police also found the forged ID cards as well as the forged bank statements.

4.  Two ice-inhaling bottles found in the room were taken for a subsequent DNA analysis and the result shows that one of them contains the defendant’s DNA.

5.  The ID cards were submitted to the Government Laboratory for examination, they were found to be forged because the cards were made with the inkjet printer.

6.  As far as the bank statements are concerned, they are false because the bank confirmed that the account numbers shown on the statements did not exist.

7.  When being interviewed by the police, the defendant explained that she had bought the drugs for her own consumption by using the bottle in question. In regard to the ID cards and the statements, she said she picked them up from a rubbish bin earlier in the day and would throw them away after returning home. 

8.  The defendant’s case was fixed for trial in the District Court on 3^rd October 2016, and she was admitted to bail by the court pending trial. She, however, failed to appear on the day of trial and a warrant for her arrest was issued. 6 days later (9^th October), police found her to be one of the passengers of a taxi which was being pulled over by the police at a road block in Sham Shui Po.  

9.  The defendant has 12 previous convictions, 6 of them are drug-related, two of which are trafficking, her last trafficking offence was in 2011 for which she was sentenced in the High Court for 5 years and 2 months; 4 out of the rest of her previous convictions are using false instruments.   

10.  In mitigation, counsel for the defendant said that the defendant had a job as a cleaning lady at the time of the offence earning $11,000 a month. She has been in the habit of consuming ‘ice’ almost every day, counsel said, and  the drugs found on her were all for her own consumption.

11.  Insofar as latent risk is concerned, it is submitted that the drugs were hidden on her body to which others did not have easy access. As there is no evidence to suggest that she would share the drugs with others, the risk involved would be considered low.

12.  In regard to the forged ID cards and statements, the court was told that the defendant was asked by a friend to deliver them to a man who would be in the vicinity of the hotel. The defendant had no idea what they would be used for.

13.  Failing to attend on the day of trial, the defendant explained through her counsel that she got scared worrying about the prospect of being put away for a long time, and made the wrong decision to abscond. Counsel stressed the fact that it was only a relatively short period of time, 6 days,  during which the defendant was on the run.

14.  In Mok Cho Tik CACC 165/2000, the appellate court said, “…..We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months. …………….Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be.  The existence of risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs were kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of the drugs. The full circumstances of the risk must be assessed.”

15.  The drugs found on her clearly cannot be described as minute amounts, and they are not massive either. Counsel said she used ‘ice’ almost every day, and for that matter she is clearly a long term drug abuser. She has 4 previous of possession of dangerous drugs, the first was in 1998 and the last in 2008. And given her drugs convictions, she is undoubtedly a persistent offender. In the range of 12 to 18 months, I would take 15 months as starting point.

16.  In terms of the risk factor, what we have here is that there are 3 bags of ‘ice’, 3 women including the defendant and two bottles capable of being used for inhaling ‘ice’.  The risk that some of the drugs might find its way to the other two women is very high. For the risk factor, I would add 9 months on top to take it to 24 months.

17.  In Fan King Lam CACC 220/2010, the appellant pleaded guilty to one count of trafficking in dangerous drugs and one count of possessing ID cards relating to another person, he was sentenced to 5 years and 8 months imprisonment for trafficking and 12 months for the other offence, the judge ordered the two terms to run consecutively to each other resulting in a total term of 6 years and 8 months.

18.  In dismissing the appeal against sentence, the Court of Appeal has this to say:

“We accept, of course, that the present applicant is a Hong Kong permanent resident and not someone staying in Hong Kong by permission. There is no specific tariff for such a case. While it is true that there could be no issue of seeking employment, we see no ground to say that the 12 months is not applicable in this case. In HKSAR v Lau Kwok Wo, CACC 181/2008, in discussing the sentence of 12 months for possessing a forged Hong Kong identity card, Yeung JA pointed out:

’20. The applicant is neither an illegal immigrant nor an overstayer in possession of a forged identity card or an identity card relating to another person. As Mr. Wong correctly pointed out, the Applicant was a Hong Kong permanent resident and so he must have his own identity card. By possessing a forged identity card, the Applicant must have his purpose. We do not intend to speculate his purpose. But he was certainly up to no good. In view of these, the Applicant’s offence of possessing a forged identity card is no less serious than an illegal immigrant or an overstayer possessing a forged identity card or identity card relating to another person for finding a job or extending his stay. ’ ”

19.  The Appellate Court went on to say :

“20. In the present case, although the cards were not forged and the defendant was a Hong Kong permanent resident, we are of the view that, given the circumstances, 12 months after plea is neither wrong in principle nor manifestly excessive, particularly when the applicant was in possession of two identity cards relating to another.

21.  Equally, the order of consecutive term is appropriate in the circumstances……….. ”

20. In the instant case, it’s not for me to speculate what exactly the defendant was going to do with these forged cards and documents. When the defendant was arrested by the police, she told them that she would discard them upon returning home, that clearly was a lie because today her counsel told the court a different story- she was helping a friend to deliver them to another man, but I do not believe either of them. Given the circumstances in which they were found, it is almost a certainty that she was up to no good. For charges 2 and 3, I would take 18 months as starting point.

21. In regard to her offence of failing to surrender to custody, she had absconded for 6 days before being apprehended by the police again. In view of the time she had absconded, I take 1 ½ months as starting point.

22.  As far as mitigation is concerned, apart from her guilty pleas, there isn’t any mitigation of substance which would justify any further reduction in the sentence. After deducting 1/3 for her pleas,  the sentence for each of the charges is as follows:

Charge 1: 16 months

Charge 2: 12 months

Charge 3: 12 months

Charge 4: 1 month

23.  These offences, possession of dangerous drugs, possession of forged ID cards as well as failing to surrender to custody, are distinct and separate; taking into account the totality principle, given the circumstances of the instant case, I order that the term of charge 1 should run consecutively to charge 2 and charge 4 but concurrently with charge 3, the total term is one of 29 months.