HKSAR v. LAM HOI YAN

HCCC 122/2019

[2019] HKCFI 2752

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 122 OF 2019

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

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COURT:

Defendant pleaded guilty before a magistrate to one charge of trafficking in dangerous drug and was committed to the Court of First Instance for sentence.

In sentencing, I have considered the whole circumstances of the case, paying particular regards to the type and quantity of the dangerous drug involved, background of the defendant and mitigation put forward on her behalf.

The facts which the defendant admitted may be summarized as follows:

When police officers entered the room in a residential building, the defendant was the only person inside. Upon search, one box containing four plastic bags each containing ‘Ice’ was found. Also found were items including two electronic scales, one electronic calculator, one plastic spoon and large number of transparent resealable plastic bags. Cash of 5,850 was also found. The defendant was arrested.

Under caution, she admitted that the ‘Ice’ was both for selling for profit and her own consumption. In a subsequent interview, she repeated the confession and said she would sell the ‘Ice’ so that she could have money to buy more drug. She said she would charge 500 for every half gramme of ‘Ice’, 1,000 for every 2 grammes and 1,800 for every 4 grammes. She also admitted that the cash found was profit from selling ‘Ice’.

I was told that the defendant is 40 years of age. She had finished Form 7 at school. She is single and lived alone. She had worked as a consultant manager in a foot massage service shop. She was unemployed at the time of offence. She is not a first time offender. On three occasions prior to the present case, she had been convicted for theft and back in 2009, she was fined for an offence of possession of dangerous drug. She committed the present offence whilst a 6-week suspended sentence was in force for the offence of theft and when she was on bail for a theft case. She was later convicted on 18 June 2018.

In mitigation, learned counsel for the defence, Mr Kan, stressed that the defendant had pleaded guilty at the earliest opportunity and is now remorseful. It is asserted that the defendant intended to keep a proportion of the drug seized, that is a packet of 14.2 grammes, for her own consumption. It was said that she would consume about 1 gramme a day and this quantity would have lasted her about two weeks. An(A?) urine test result on the CSD data four days after her arrest show positive result for ‘Ice’.

The dangerous drug which the defendant had trafficked in was ‘Ice’. The total quantity was 33.25 grammes of crystalline solid containing 27.74 grammes of methamphetamine. The tariff as set out in HKSAR v Tam Yi Chun, CACC 524/2011 is applicable. In that case, the Court of Appeal held that if the narcotic content is between 10 to 70 grammes, the sentence to be considered is 7 to 11 years’ imprisonment. In all the circumstances, I see no reason to depart from the tariff. By reference to the quantity of the dangerous drug seized, which is the most important factor in consideration of the sentence, a starting point of 8 years and 3 months would have been appropriate.

The defendant claimed that some of the dangerous drug seized was intended for her own consumption. In this connection, I have had regards to HKSAR v Wong Suet Hau [2002] 2 HKLRD 1121 (1 HKLRD 69?) and HKSAR v Tan Xiu Yun [2015] 5 HKLRD 872, as well as the following matters:

The drug was found at where the defendant was staying. Her first response when the drug was found though she did not mention the proportion of drug she would intend to keep for self-consumption. The defendant’s previous record of dangerous drug, though it was quite a while ago, and the urine test conducted upon the defendant’s arrest, it shows methamphetamine in her urine. There is insufficient basis for me to neither to find that having the asserted quantity of drug for her own consumption was definitely beyond the defendant’s means, nor to find that such asserted quantity though substantial was beyond the reasonable range one would keep for self-consumption.

In all the circumstances, I am prepared to accept that a substantial quantity of the dangerous drug seized would be intended for her own consumption by the defendant, despite it might not be as much as the defendant asserted. However, I have to take into account that even for the offence of possession of dangerous drug, a sentence of custodial nature would be imposed having regard to the quantity asserted. Moreover, my assessment is that the latent risk was very high. In any case, even if the quantity which the defendant asserted would be for her consumption is taken out, the remaining quantity was 15.14 grammes of narcotic, a starting point of about 7 years and 4 months would have been attracted for the remaining quantity.

Having taken into account the above factors and having had regard to the case of HKSAR v Tam Ling Yuen, CACC 159/2015 and the more recent Court of Appeal decision in HKSAR v Yeung Shek Yung, CACC 314/2016, taking into consideration that the defendant committed this offence whilst on bail for which I will enhance the sentence by about one month, in my judgment, an ultimate starting point of 7 years 9 months is appropriate.

The defendant pleaded guilty before a magistrate, and for this she is entitled to a one-third discount. In other circumstances, I am of the view that this is the extent of discount the defendant is entitled too.

The defendant committed the present offence when a suspended sentence of 6 weeks was in force. It is noted that the defendant was convicted and sentenced for another case of theft prior to the present hearing and subsequent to the passing of the suspended sentence. The prosecution was initially not able to confirm whether or not the magistrate handling the said latter theft case had considered activation of the suspended sentence and therefore the case was adjourned for clarification of the matter. Upon subsequent confirmation from prosecution and reading of the transcript of the theft case in question, I am satisfied that the magistrate had not been made aware of the existence of the suspended sentence. She was told that the defendant had three previous convictions with two being theft-related. The theft case which attracted the suspended sentence was the third theft-related conviction and apparently had not gone into the record yet at that time. In the circumstances, I have to consider whether or not to activate the suspended sentence.

In this connection, I have considered the provision in section 109C of the Criminal Procedure Ordinance and what a Court of Appeal said in Li Kim Wai v The Queen CA 729/1980 and AG v Wu Chi Shing AR 11/1989, and come to the view that it is not unjust to activate the suspended sentence. The defendant committed the present offence less than two months after the suspended sentence had been imposed. Mr Kan stressed that the two cases involve offences of different nature which is true, but I had to take into account that the further offence which the defendant committed was a very serious one.

Mr Kan urged me to consider a partly concurrent sentence if I am to activate the suspended sentence. Having considered totality, I consider it appropriate to order 1 month of the activated suspended sentence to run consecutively to the present sentence. To give effect to this thinking and make things simpler, I order the suspended sentence be activated with a lesser term of 1 month.

The defendant, please stand up. For the reasons I have said, I sentence you to 5 years and 2 months’ imprisonment for the present case. I order the suspended sentence imposed in WK 1687/2018 be activated with a lesser term of 1 month. Having regard to totality, I order the imprisonment term for the present case to run wholly consecutively to the activated suspended sentence. So you are to serve a total sentence of 5 years and 3 months for the two cases.