HKSAR v. LAM KHAMKHOON

CACC 402/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 402 OF 2014

(ON APPEAL FROM HCCC 46 OF 2014)

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JUDGMENT

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Introduction

1.  The applicant was charged with one count of trafficking in a Dangerous Drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The count in the indictment alleged that on 11 August 2013 the applicant unlawfully trafficked in 21.96 grammes of a crystalline solid containing 21.52 grammes of methamphetamine hydrochloride (ICE).  This drug is commonly known as “ICE”. 

2.  On 5 November 2014 the applicant pleaded guilty before Deputy High Court Judge Robert Lee, SC and was sentenced on the same day to 4 years and 10 months’ imprisonment.  She now applies for leave to appeal that sentence. 

The background to the offence

3.  Police conducted a raid at Flat H, 8^th Floor, Lily Mansion, 102‑108 Lockhart Road, Wanchai.  At that time they were searching for another Thai female and when they knocked on the door of the premises it was opened by the applicant.  When a search of the premises revealed “ICE” on top of a television cabinet, the applicant was arrested for possession of this drug and searched.  The police then found concealed on the person of the applicant the drugs the subject of the charge.  The applicant was ultimately not prosecuted for the other drugs found in the premises. 

The mitigation advanced on behalf of the applicant

4.  Counsel for the applicant informed the judge that before her arrest the applicant was working as a dancer waitress earning about $18,000 a month.  She started taking “ICE” in 2005 and became addicted to it by 2007.  In that year she was prosecuted for simple possession and fined. She was again prosecuted for simple possession in 2013 and sentenced to Drug Addiction Treatment Centre (“DATC”). 

5.  It was the applicant’s contention that the drugs found on her person were to be mainly consumed by herself but she admitted some of the drugs would be shared with customers whom she entertained in the course of her work.  When entertaining customers she would make available to them free of charge the dangerous drugs.  It was her case that much less than half of the drugs would actually go to the customer and that she would consume the bulk of the drugs.  It was her estimation that 75% of the drugs would be consumed by herself, but, through her counsel, she readily conceded that this was only an estimate. 

6.  Once counsel had concluded his submissions the prosecutor addressed the judge as follows:

“MS CREBBIN: Mr Lord, I think in fairness I should say the prosecution do not accept that three-quarters of this was for her own consumption. There may be a little bit that she may have used, but we certainly don’t accept it was anywhere near as much as three-quarters – for the record.

COURT: All right.

MR YEUNG: My Lord, in fact, she already put down that this is her estimate.

Actually, what would eventually happen with this drug is unknown. But, basically, she is going to take this drug herself while entertaining a customer and she will share with the customer. That’s the basis. And she estimates that. So I don’t know how she can be more accurate than that in the estimate.

COURT: All right.

MR YEUNG:  Yes, thank you.”

7.  Nothing further was said until the judge delivered his Reasons for Sentence.  On the issue of self-consumption he said that:

“It is said in mitigation that you intended to share the drugs with your friends as well as to consume them yourself. The prosecution does not accept that submission. On the materials before me, prosecuting counsel is right to do so.”

Discussion

8.  In the mitigation advanced by counsel for the applicant it was made clear to the judge that the applicant was seeking a discount on the basis that part of the drugs were for her self-consumption. The applicant appeared before the judge with a criminal record for possession of dangerous drugs in 2007 and a similar conviction in 2013 where the sentence imposed was DATC.  This clearly provided the judge with evidence of the applicant’s addiction to dangerous drugs and supported the applicant’s submission that part of the drugs were for her own consumption. 

9.  The stance adopted by the prosecutor was not to deny that part of the drugs may have been for the applicant’s consumption or to deny that her trafficking in them was only in the form of freely making them available to her clients in the course of entertaining them.  What the prosecutor did contest, and only contested, was her claim that three-quarters of the drugs were for her own consumption. 

10.  At the time that the prosecutor and defence counsel discussed the issue of self-consumption with the judge, there was no indication provided by the judge of his view of the credibility of the claim and of how he intended to deal with it.  Given the stance of the prosecutor and the applicant’s drug history, the way this issue was left unresolved gives rise to a reasonably arguable submission that the final sentence imposed by the judge may be manifestly excessive.  This, in my view, is a matter which provides justification for granting leave to the applicant to appeal her sentence and this I now do.