HKSAR v. LAM FUNG YEE

DCCC 1350/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1350 OF 2011

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Reasons for Sentence

1.  The defendant pleaded guilty to one charge of possession of dangerous drugs and one charge of possession of apparatus fit and intended for the inhalation of dangerous drugs. The drug involved is 6.99 grams of methamphetamine hydrochloride (“Ice”).

Facts

2. The defendant was a passenger in a vehicle that was intercepted at a Police road block at about 3:53am on 7^th October 2011 in Kwun Tong area. Upon search, 19 re-sealable transparent plastic bags containing dangerous drugs were found in one cosmetic bag in the defendant’s handbag. In another cosmetic bag, an inhaling device for the smoking of ‘ICE’ was found. Under caution, the defendant claimed that the drugs were for her own consumption. In a subsequent video recorded interview, the defendant confessed to having bought the drugs from ‘Ah Lok’ in a game centre in Mongkok the previous day, and the smoking apparatus from a stall in Temple Street.

Previous convictions

3. The defendant has 3 previous convictions similar to charge 1. The first one was in 2004 and is considered spent. The latest convictions were in December 2007 when she was sentenced to a total of 24 months’ imprisonment for 2 charges of possession of dangerous drugs.

Mitigation

4. Pursuant to s.54A of the Dangerous Drugs Ordinance, a Drug Addiction Treatment Centre Report was ordered to be prepared on the defendant. It is the opinion of the Medical Officer that the defendant is not a drug dependent.

5.  According to the report, the defendant was a housewife at the time of the commission of the offence. She said that she took the ‘Ice’ to relieve the pressure of motherhood.

Sentence

6.  In the case of HKSAR v Mok Cho Tik, CACC 165/2000, the Court of Appeal said this,

 “17. Sentencing is an art, and we emphasize that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case. 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, (and that is the range that has been adopted particularly for cases in the District and High Court)……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 the 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 are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”

7.  In Mok Cho Tik, the amount of ‘Ice’ involved was 15.724 grams. Having considered a number of previous cases, the Court of Appeal stated that a proper starting point would have been 18 months’ imprisonment for simple possession of that amount of ‘Ice’. The court then proceeded on the basis that there was a latent risk of distribution and enhanced the sentence by 12 months, making the final starting point of 30 months’ imprisonment.

8.  The risk factor found by the Court was not of commercial supply but rather of social consumption by others visiting the premises of the applicant for the purpose of sharing the dangerous drugs in possession of the applicant. The applicant in Mok Cho Tik had admitted to occasional sharing of the ‘Ice’ with his friends who visit, and there were four bottles in the refrigerator which had obviously been used to ingest drugs to support that admission.

9.  The amount of ‘Ice’ in our present case is less than half that in Mok Cho Tik. Although the defendant was a housewife at the time of the offence, there is no evidence to suggest that the dangerous drugs were to be shared with others. Furthermore, the quantity of the drug is not such that an inference of distribution must be drawn.

Charge 1

10.  On the basis of the amount of ‘Ice’ being possessed, I will first of all adopt a starting point of 15 months’ imprisonment. I find that the defendant is a persistent offender which is an aggravating factor. For that, I will increase the starting point by 3 months to that of 18 months’ imprisonment. I do not find that there is a latent risk of distribution.

11.  The defendant is given the full one-third discount for her guilty plea and sentenced to 12 months’ imprisonment on charge 1.

Charge 2

12.  The maximum sentence for charge 2 is a fine of $10,000 and imprisonment for 3 years.

13.  I will fine the defendant $5,000 for charge 2, to be taken from bail.