HKSAR v. LAM WING SZE AND ANOTHER

DCCC 856/2022

[2023] HKDC 851

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 856 OF 2022

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REASONS FOR SENTENCE

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1.   This case has two defendants who are jointly charged with, one, possession of apparatuses fit and intended for inhalation; and two, trafficking in dangerous drugs. The 2^nd defendant pleaded guilty to both charges on day 1 and was convicted as charged on his own plea and admission of the facts. The 1^st defendant pleaded guilty to the 1^st charge on day 1 and after a short trial for the 2^nd charge, was found not guilty of trafficking but guilty of possession of a dangerous drug, meaning in this case the packet of 0.25 grammes of ‘Ice’.

Facts

2.   The facts can be very simply stated.  In the morning of 2 May 2022, police conducted an anti-narcotics operation at the IW Hotel in Kwun Tong.  The 2^nd defendant was stopped when he was at the ground floor lobby of the hotel.  Using the key card found on him, the police then gained entry into the room he was sharing with the 1^st defendant.  Inside the room, D1 was found sitting on the bed with one of the apparatus referred to in Charge 1 in her hands. 

3.   In the search which followed, the police found two more of these inhaling devices, one in the hotel room itself and the other in the washroom.  The police also found on a glass shelf, which was opposite to where D1 was sitting, a strongbox (referred to as a portable safe in this case)  in which the drugs referred to in Charge 2, a banknote folded into a small packet with traces of ketamine in it, a bunch of 80 empty resealable bags, and an electronic scale were contained. 

4.   At the trial, D1 elected not to testify but called D2 as her witness.  Now without going into the details about D2’s evidence, it suffices to say that I found his evidence to be a mixed bag of truths, half-truths, and lies.  However, let me immediately add that I am not going to hold that against him when considering the sentences he is going to receive in the present case.  

5.   As to D1, on the basis of her own plea and admission, she is found guilty of Charge 1 and based on the evidence, including among others D2’s evidence that he had in fact offered D1 the bag of ‘Ice’ for her own consumption among others, she is found guilty of possession of dangerous drugs under the 2^nd charge. 

Background

6.   I called for a DATC report in the case of D1.  I will deal with D1 first.  She is 24 years old and based on the report I called for, had a rather difficult childhood.  These included incidents of her running away from home and she getting pregnant when she was at around 16 years of age.  However, she managed to study up to Form 6 and after that she started working on different jobs but all for only very brief sessions.  She began working as a keeper at illegal gambling establishments after that. 

7.   In 2017, she started cohabiting with the 2^nd defendant and again, according to the report, she is now reported to be pregnant with delivery expected to be in a few months’ time. 

8.   D1 has two previous convictions, the first one going back to 2019 when she was convicted of the offence of operating a gambling establishment for which she was given a suspended sentence of 6 weeks.  She was convicted for a second time of the offence of gambling in a gambling establishment in 2022 and was fined on that occasion. 

9.   Starting from around 2013, she was on and off on drugs.  According to the report, she used ‘Ice’ mainly and has been relenting from it for different periods of time.  And it was said in the report that she actually had her first puff of cocaine in February this year.  In any event, she is said in the DATC report to be a drug dependent, is considered suitable for admission thereto, and there is a place for her. 

10.   Turning to the 2^nd defendant.  He is now 42 years old.  He came from a more well-to-do family.  His mother is said to be a successful garment merchant.  He had a degree from Australia.  After a brief career in the entertainment industry, he ran his own restaurant for a few years, but that did not work out.  And for quite a while prior to the date of the present offences, he has been living with a subsidy from his mother which he subsidised or supplemented by doing odd jobs, he said.  He is married with a 6-year-old son, both his wife and the son apparently living with his mother. 

11.   The 2^nd defendant has four previous convictions, one for dangerous driving, two for gambling in gambling establishment, and the last one was for assisting in the management of a gambling establishment which was entered in January 2021. 

12.   In testifying for the 1^st defendant, the 2^nd defendant admits to be a drug user himself for a good number of years.

13.   In mitigation, it is said by Mr Boyton that a very good part of drugs, probably up to 50% of it, was for his own consumption.  And of course, on the evidence which I accept, he is also supplying drugs to D1 who was his girlfriend at the material time. 

14.   As I have also mentioned, I believe in my reasons for verdict for D1, I was prepared to accept that D2 was probably trafficking drugs only in his own social circle instead of peddling the drugs around in the community as a whole. 

Sentencing Considerations

15.   Dealing with D1 first.  There is no question in my mind that the paramount concern is her drug addiction, all the more so in light of her pregnancy and the fact that she has also had a son. 

16.   Now in order to help her to get rid of it, I have no doubt that the DATC is the best sentencing option in the circumstances. This may well be considered as a little over generous in the circumstances but that is what I am going to do.  So for each of the two charges D1 is found guilty of, she will be sentenced to a term at the DATC, both obviously to run concurrently.

17.   As to the 2^nd defendant, let me start by saying that with his comparatively privileged background, it is a great pity that he has not carved out a useful life for himself or his family.  And as he would have been advised by his counsel, there are clear authorities that trafficking in dangerous drugs have to be dealt with strictly by courts in the territory. 

18.   Now the sentences to be passed in the present case is a slightly more complicated matter, he is found to have 0.09 grammes of cocaine, 8.61 grammes of ketamine and 0.25 grammes of ‘Ice’.  According to the Court of Appeal’s decision in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, the court has to start by considering an individual guideline band for each of these. 

19.   Now having referred to the sentencing guidelines for each of the three types of dangerous drugs, it is clear that for the amount of cocaine in question, a starting point of 2 years’ imprisonment would have been appropriate; For the ketamine, a starting point of 3 years and 4 months’ imprisonment; and for the 0.25 grammes of ‘Ice’, 3 years would have been appropriate starting points for these drugs individually.  But, of course, that is not what the court will adopt as the starting points and add them all up. 

20.   In the current case, there can be no question in my mind that the combined approach is the proper approach to be used and looking at the circumstances of the case and the quantity of drugs in question, I have come to the view that a starting point of 44 months’ imprisonment would have been appropriate for the 2^nd charge. 

21.   One of the features which led me to a starting point which is a little higher than that suggested by his counsel is that with a mixture of drugs, there is clearly a larger market for D2’s trafficking. And there is clear authority that that is a matter which courts have to take into account in considering what is called a cocktail of drugs here. 

22.   Now, I have checked that starting point with the various tests propounded including, the absurdity test, conversion test and the individual test, and having done so, I am satisfied that 44 months is a proper starting point. 

23.   Now in relation to the role of D2, he is in my view not only a storekeeper, he is keeping obviously the drugs but he is also, in fact, supplying them to among others, D1, and as I said in social circles of his own. 

24.   However, notwithstanding that, I am of the view that a starting point of 44 months’ imprisonment would have already catered for that capacity as well.  And having looked at the facts of the present case, I do not find any other aggravating features which I will have to take into account. 

25.   Turning next to the mitigations advanced, his guilty plea at the earliest opportunity would have, of course, attracted a full one-third discount.  The fact that he was having probably up to half of the drugs found in his possession for self-consumption which, as I have indicated earlier, I was prepared to accept is another matter. 

26.   Taking what I hope is a balanced view, I will give him an extra 17 per cent or so for self-consumption.  With a starting point of 44 months, an aggregate discount of 50 per cent will take the sentence for the 2^nd charge down to 22 months’ imprisonment.  Now that seems to me to be a fair and just sentence to be adopted in the circumstances.  And that is what I will sentence D2 to for the 2^nd charge. 

27.   As to the 1^st charge, I will simply say that I sentence him to a term of 1 month’s imprisonment and that is to be served concurrently with the 22 months’ term, making therefore a total of 22 months’ imprisonment for the 2^nd defendant.