HKSAR v. KAWELMACHER JIMMY LEE

DCCC446/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 446 OF 2012

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Reasons for Sentence

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1.  The defendant has pleaded guilty to three charges: 1st charge, breach of condition of stay; 2nd charge, trafficking in dangerous drugs; 3rd charge, possession of Part I poison.

The Summary of Facts

2.  On 3 February 2010, police conducted an operation at a partitioned flat located at Queen’s Road East, Wanchai.  The defendant was intercepted when he was leaving Room A, a room of the partitioned flat.  Upon search, one foilpack containing nine tablets containing a total of 0.01 gramme of nimetazepam and two keys which could open the door to Room A were found from the defendant’s left front pocket.

3.  A search warrant was executed inside Room A. Upon search, the American passport of the defendant was found on a table. Three packets of empty transparent resealable plastic bags, a pack of aluminium foil, an electronic scale, one plastic sealing machine and 30 tablets containing sildenafil, which is a listed Part I poison, were found inside the room.  Furthermore, the following items, all containing dangerous drugs, were found inside the room:

(1) two plastic bags containing a total of 9.25 grammes of a crystalline solid containing 8.99 grammes of methamphetamine hydrochloride;

(2) one glass bottle with a dropper and one plastic bottle containing 23 millilitres of a liquid containing traces of methamphetamine and ketamine;

(3) one test-tube containing traces of powder containing methamphetamine;

(4) one inhaling device containing traces of methamphetamine;

(5) one glass bottle inserted with one glass tube which was further connected to a rubber tube and a plastic straw containing traces of methamphetamine.

4.  The defendant was arrested and cautioned.  Under caution, the defendant remained silent. 

5.  Immigration record revealed that the defendant lawfully entered Hong Kong on 26 August 2010 on visitor’s status and was allowed to stay until 24 November 2010. 

6.  The defendant had cash of $3,192 with him at the time of the arrest.  The total estimated street value of the nine tablets of nimetazepam and the 9.25 grammes of solid containing methamphetamine hydrochloride was $7,874.  The defendant asserts that he procured 8.99 grammes of “Ice” at the cost of HK$3,600.

Background and Mitigation

7.  The defendant is a 36-year-old US citizen.  He has a clear record in Hong Kong.  In mitigation, Mr Ho, counsel for the defendant, tells the court that the defendant’s parents and siblings are all living in the United States.  Though the defendant is not married, he has two children aged 17 and 4 respectively living separately in the United States and Australia.

8.  The defendant was formerly a software engineer. He lost his job in Australia during a redundancy.  He came to Hong Kong and found a job here.  However, before he could get his working permit, the company went down and he lost his job.  Since then, he has stayed in Hong Kong. 

9.  For the 1st charge, Mr Ho submits that imprisonment is not uncommon.  He asks the court to pass a suspended sentence.

10.  For the 2nd charge, it is submitted that the amount of the drugs is relatively small.  Accepting the guidelines in AG v Ching Kwok Hung [1991] 2 HKLR 125, Mr Ho submits that the guideline is not a mathematical scale and suggests that, without any authorities in support of his contention, the proper starting point should be 3 years.

11.  For the 3rd charge, it is submitted that there is no tariff and the proper sentence should be around 2 months’ imprisonment to run concurrently with the sentence in Charge 2.

12.  It is convenient to note here that the defendant pleaded guilty to the 1st charge at the outset of the proceedings before me.  However, he pleaded not guilty to the 2nd and the 3rd charge.  When the trial started, Mr Ho made an application to exclude the evidence of the drugs exhibits seized under the execution of search warrant. 

13.  For what it is worth, I should briefly state here the grounds of the application. 

14.  The first ground of the application was that the warrant cards of the two police constables involved in the house search were expired.  It was conceded by the prosecution that the renewal date on the warrant cards of the two police constables was 30 November 2011 (see Exhibit P1 which shows the same form of warrant card).

15.  The second ground was that when another occupant of the partitioned flat opened the door at the main entrance of the flat, police officers lied to him that they were looking for a foreigner in connection with a traffic accident. 

16.  The third ground was that the search warrant was not shown to the defendant. 

17.  The allegations in the first and second ground were admitted while the third ground was denied by the prosecution.

18.  It was in the afternoon of the first day of the proceedings when I refused the application that the defendant reversed his plea to the 2nd and the 3rd charges. 

19.  Mr Ho submits that the defence application was a genuine application on a legal issue.  No oral evidence has been adduced.  The defendant should be entitled to the normal one-third discount for a plea of guilty.

20.  It is further put forward as mitigation factors that the defendant is a foreigner, the prosecution’s case is not a strong one against the defendant, and that he has a clear record in Hong Kong.

Sentencing Consideration

21.  The first observation I should make is that the defendant should consider himself very lucky that he was not prosecuted for manufacturing of dangerous drug which is a more serious charge than trafficking in dangerous drugs.  From the photographs produced to the court, the room occupied by the defendant was just like a mini-laboratory with suspicious paraphernalia, including various types of glass bottles, test-tubes and rubber tubes. 

22.  That said, I make it clear that I will only sentence the defendant on the basis of trafficking in dangerous drugs, ignoring the suspicion arising from the exhibits and circumstances for manufacturing of dangerous drug.

23.  For the 1st charge, the defendant has overstayed for about 14 months.  There is no tariff in this offence.  The maximum sentence is 2 years’ imprisonment.  His overstay status was only discovered when he was arrested for the drugs offences. 

24.  In HKSAR v Yeung Chau Fong HCMA100/1999, the appeal against sentence was referred by the Court of First Instance to the Court of Appeal.  The appellant in that case came to Hong Kong to look after her very young children and overstayed in Hong Kong for about one year and five months.  In the magistracy, she was fined $2,000 and ordered to be imprisoned for 2 months suspended for 3 years by the magistrate who indicated sympathy for the appellant.  Despite sharing sympathy for the appellant, the Court of Appeal said the order of the magistrate was a proper one.

25.  In this case, I will take 1 and a half months’ imprisonment as starting point and reduce it to 1 month for the plea of guilty. However, unlike the appellant in the case I just referred to, I see no reason that the defendant should overstay in Hong Kong.  I do not think there are grounds to suspend the sentence.

The 2nd Charge

26.  Drug trafficking is an extremely serious offence and the court has laid down specific sentencing guidelines in order to combat this offence.  The drugs alleged in the 2nd charge are 0.01 gramme of nimetazepam and 8.99 grammes of “Ice.” 

27.  For the purpose of sentencing the defendant, I will ignore the traces of “Ice” and ketamine admittedly found inside the defendant’s room. 

28.  Mr Ho has not suggested whether the court should adopt the individual approach or the combined approach.  As “Ice” and nimetazepam are not directly comparable, an individual approach is usually used.

29.  Whichever approach is adopted, the court must give proper regard to totality.  In this case, I must not overlook that the “Ice” will attract a substantial sentence.  I am satisfied that the small quantity of nimetazepam can add nothing to the overall criminality of the trafficking charge.  I will therefore also ignore the nimetazepam for calculation of the sentence.

30.  Mr Ho’s suggestion that the appropriate starting point for 8.99 grammes of “Ice” should be 3 years is not supported by any authorities.  While the Court of Appeal in Ching Kwok Hung did not say that the guidelines should be applied mathematically, it has been the practice of the courts to determine sentence mainly by reference to the quantity of the drugs.  For example, see paragraph 13 of the Court of Appeal’s judgment (English version) in HKSAR v Wong Ping Kay CACC274 of 2007.  Yeung JA as he then was said:

“As far as the offence of trafficking in a dangerous drug is concerned, the starting point is determined by reference to the quantity of the drug in question.”

31.  The guidelines in Ching Kwok Hung case, clarified in HKSAR v Capitania Edwin F. CACC28 of 2004, provide that for “Ice,” for quantity of narcotic up to 10 grammes, the sentence is between 3 and 7 years; for quantity between 10 and 70 grammes, the sentence should range between 7 to 10 years.  The guidelines would therefore suggest that for 10 grammes of “Ice,” the starting point should be 7 years.

32.  During mitigation, it has been clarified that there is no suggestion that the drugs were for the defendant’s own consumption.

33.  The narcotic of “Ice” in this case is 8.99 grammes.  While a mathematical computation may not be strictly necessary, the starting point suggested by Mr Ho is wholly unrealistic.  The quantity in this case cannot be said to be small.  The appropriate starting point in my judgment is 6 and a half years. I accept the defendant’s claim that he procured the “Ice” at the cost of $3,600, but it does not affect his starting point.

The 3rd Charge

34.  No explanation was offered for the possession of the drug, but I would accept from the defendant’s mouth that the drug was commonly known as Viagra.  I take 4 weeks’ imprisonment as the starting point.

35.  It is submitted that the defendant is entitled to the full one-third reduction for his plea of guilty in the 2nd and 3rd charges.  When a timely plea is entered, an accused is entitled to his full one-third discount.  However, in this case, the defendant entered a plea of not guilty to the 2nd and 3rd charge at the beginning.  He only pleaded guilty after the trial started and when he had unsuccessfully contested the admissibility of certain evidence.  Mr Ho submits that the application to exclude evidence is a genuine application, not in bad faith.  The application has only wasted one morning.

36.  As the defendant is now convicted on his own plea, I shall not waste time to give full reasons for my ruling in refusing the application to exclude the seizure evidence.  Suffice it for me to say that even accepting the defendant’s version, which is denied by the prosecution, that the search warrant was not shown to the defendant, the admissibility of the evidence would not result in an unfair trial.  The warrant cards not being renewed would not affect the lawful authority and execution of duty of the police officers.  The so-called trick would not preclude a fair trial in the circumstances of this case.  I find the application unmeritorious.

37.  In my view, a full one-third discount is not justified.  As Yeung JA, as he then was, observed in HKSAR v Lam Chor Ping [2010] 1 HKLRD 670 and 673:

“The accused not only wasted the court’s time and prevented the court from dealing with other cases more expeditiously but also wasted public money, including expenses arising from prosecutorial work and provision of legal aid.”

38.  Taking into account that not much time has been wasted, I will still allow the defendant 25 per cent discount for his plea of guilty in the 2nd and 3rd charges.

39.  “Foreignness” is put forward as a mitigating factor.  It is submitted that the defendant will have no relatives to visit him and he will encounter cultural difficulties in prison.  His life in prison will be more difficult than local prisoners.

40.  Foreignness is a matter that the court can take into account in the calculation of sentence.  However, authorities have established that it does not necessarily attract reduction of sentence.  See HKSAR v Hong Chong Chi [2002] 1 HKC 295, Secretary for Justice v Tse Ki Wu & Others [2002] 1 HKC 160, HKSAR v Owusu CACC25 of 2006, HKSAR v Obiagwu [2011] 1 HKC 453.  In my view, given the serious nature of the drug-trafficking charge, no weight should be given to this factor.

41.  It is further suggested that the prosecution case is not strong and hence a lenient sentence is justified.  As the case did not proceed as a full trial, it is difficult to assess whether the prosecution has a strong case.  However, on the face of the evidence disclosed in the prosecution’s opening and those admitted by the defendant, in my view, the prosecution case cannot be said to be a weak one.  In any case, this is not a factor to reduce the sentence. 

42.  I will attach no weight to the clear record in Hong Kong of the defendant, being a visitor here only. 

The Sentence

43.  The defendant is sentenced as follows: the 1st charge, 1 month’s imprisonment; the 2nd charge, 4 years and 10 and a half months’ imprisonment; 3rd charge, 3 weeks’ imprisonment.  The sentence in the 1st charge should in principle run consecutively to the sentence in the other two charges.  However, having considered the totality principle, I order all sentences to run concurrently. The total term of imprisonment is therefore 58.5 months, i.e. 4 years and 10 and a half months’ imprisonment.