HKSAR v. LAM CHE WING AND ANOTHER

DCCC 425/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 425 OF 2014

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REASONS FOR SENTENCE

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1.  Lam Che Wing you have pleaded guilty to one charge of trafficking in 21.27 grammes of a mixture containing 11.29 grammes of heroin, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134 (charge 1); one joint charge of possession of 0.85 gramme of a solid containing 0.28 gramme of cocaine, contrary to section 8 of the Dangerous Drugs Ordinance (charge 2), and one charge of possession of apparatuses fit and intended for the inhalation of cocaine, contrary to section 36 of the Dangerous Drugs Ordinance (charge 3).

2.  In summary on the 19 February this year the police searched your residence on the 6/Floor of No. 112 Queen’s Road East, Wanchai.  You were found inside cubicle 1 together with three other persons, including D2, who you told the police were your friends and who you had allowed to enter the premises. 

3.  You were sat at a brown table holding a blue straw.  On the table the police found the heroin contained in 41 pellets; a resealable plastic bag and on two Hong Kong Jockey Club betting cards together with, inter alia, a quantity of plastic sheets, an electronic scale and a large quantity of empty re-sealable plastic bags. Under caution you admitted buying the heroin (charge 1). 

4.  The police also found a glass bottle with a green straw containing a liquid with traces of cocaine.  Three other bottles were found on a green table where D2 was sitting together with your other two friends.  All the bottles contained liquid with one bottle also containing traces of cocaine (charge 3).  On the table the police also found the cocaine (charge 2). 

5.  In passing sentence I have carefully considered everything said on your behalf by Mr Fung. 

Trafficking in a dangerous drug

6.  In R v Lau Tak Ming[1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said where the quantity of narcotic is between 10 and 50 grammes sentence upon conviction after trial falls within the range of 5-8 years. 

7.  I am satisfied that the appropriate starting point after trial for 11.29 grammes of heroin is 5 years imprisonment.  Although you have a long criminal record and the last conviction was for trafficking taking into account over half the offences were over 15 years ago and the trafficking charge was not for heroin or a hard drug I do not enhance the starting point by reason of persistent offending. 

Own use

8.  Mr Fung submits that 20% of the heroin was for your own use.  Taking into account you have a long drug history and have been to the DATC in 2004 I am prepared to accept that 20% of the heroin may have been for your own use.  20% of the heroin for your own use would leave approximately 9 grammes for trafficking. Under the guidelines in Lau Tak Ming the appropriate starting point after trial for 9 grammes of heroin would be not less than 4 years and 6 months imprisonment.

9.  In deciding how much weight should be attached to the fact some of the heroin was for your own use I have considered the decision in HKSAR v. Wong Suet Hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34. 

10.  Taking into account possession of drugs carries a sentence in any event and the latent risk factor, I am satisfied the starting point should be reduced by 3 months to one of 4 years and 9 months imprisonment. Giving you full credit for your plea of guilty reduces the sentence on charge 1 to 3 years and 2 months imprisonment. 

Possession of cocaine

11.  In HKSAR v Mok Cho Tik [2001] 1 HKC 261 the Court of Appeal said the starting point for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months but this does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant.

12.  Taking into account the small quantity of cocaine I am satisfied a starting point of 9 months imprisonment is appropriate.  Giving you full credit for your plea of guilty reduces the sentence on charge 2 to 6 months imprisonment.

Possession of apparatuses fit and intended for inhalation of cocaine

13.  For possession of apparatuses I am satisfied that a starting point of 3 months imprisonment is appropriate.  Giving you full credit for your plea of guilty reduces the sentence on charge 3 to 2 months imprisonment. 

Totality

14.  I am satisfied concurrent sentences are appropriate for possession of the cocaine and possession of the apparatuses fit and intended for inhalation of the cocaine.  The two charges are however separate and distinct from the trafficking charge which concerns heroin. Taking this into account I order 2 months to be made consecutive to the sentence for trafficking. 

15.  You are convicted and sentenced as follows:

CHARGE 1 – 3 YEARS AND 2 MONTHS IMPRISONMENT;

CHARGE 2 – 6 MONTHS IMPRISONMENT;

2 MONTHS CONSECUTIVE AND 4 MONTHS CONCURRENT TO CHARGE 1; AND

CHARGE 3 – 2 MONTHS IMPRISONMENT CONCURRENT TO CHARGES 1 & 2.

This makes a total sentence to be served by you of 3 years and 4 months imprisonment, which I am satisfied properly reflects your criminality on the three charges.