HKSAR v. LAI HIU YAN

HCCC 255/2019

[2019] HKCFI 2942

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 255 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: Ms Lai, you have pleaded guilty on 22 July of this year before the Eastern Magistrates’ Court to one count of trafficking in dangerous drugs, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and you have confirmed that plea today. The dangerous drugs in question were a total of 33.43 grammes of methamphetamine hydrochloride, more commonly referred to as ‘Ice’, 1.26 grammes of cocaine and 0.33 grammes of nimetazepam which was contained within 33 tablets. All of these drugs were found upon you when you were stopped in Tuen Mun West Rail Station.

On arrest, you said they were for your own consumption and in interview you said that you had purchased the ‘Ice’ for $10,000, the cocaine for $500 and the “5 Zai” for $500. You now say, in evidence and through your counsel, that 40 per cent were for your own consumption and that you had purchased all of those drugs that evening from one dealer for HK$9,000, HK$1,500 and HK$500 respectively, even though you have told the court in evidence that you were supported financially by your unemployed boyfriend who is a drug dealer himself.

You also told the police in interview that you worked as an assistant in a hairdressing salon earning HK$15,000 per month. Today that has been increased marginally to HK$16,000 a month. If that was the case then the cost of the ‘Ice’ was a significant proportion of your salary. In fact, the street value of the dangerous drugs found upon you that day was $21,593 which was far in excess of your salary. By reason of your plea, you clearly now accept that you were trafficking in those dangerous drugs that day, save that of course you have submitted through counsel and in evidence that some 40 per cent of it that was found upon you was for your own consumption. I do not accept that percentage.

Ms Lai, whenever a court is asked to discount a sentence by reason of self-consumption the court must be satisfied that it is appropriate to do so. It can only carry out that exercise upon the basis of evidence properly adduced before it and it should not do so based upon a bare assertion from the bar table. You were provided with an opportunity to give evidence on this issue by way of a Newton hearing and to your credit you chose to do so. Having heard you, I have no doubt that you abuse drugs. The issue is whether the drugs found upon you were for your use or were to be sold to others.

I do not accept that you consumed 1 gramme of ‘Ice’ per day which you say you took at your girlfriend’s house between 7 and 8 o’clock each morning when her mother was out. You say you would take the ‘Ice’ with nimetazepam together and then report for work at 11 am. Given that you had been released from DATC and that your employment had been found for you by Social Services, I find it hard to believe that you would have been found by your employer to be fit for work if you did so, or that if you had been under the influence of dangerous drugs that they would not have fired you.

There were no dangerous drugs or paraphernalia found in your home which you shared with your family and so I can only infer that you would have taken drugs with your drug-dealing boyfriend, and yet, you have not mentioned him when referring to your drug abuse. Why would you be buying any drugs at all if you had a boyfriend who dealt in drugs for a living? He is not going to provide you with $4,000 in order to purchase drugs from another drug dealer.

There is, however, evidence before the court of your drug habit because of the positive result obtained upon your arrest and incarceration, which indicates that there were benzodiazepines in your system as well as methamphetamine. Nimetazepam is a benzodiazepine derivative. But how much, if any, of the dangerous drugs you had upon you that evening would you have consumed given that you accepted by your plea that you were trafficking in dangerous drugs.

What the court does have available to it is the manner in which the drugs were packaged and concealed upon arrest. The larger amount of methamphetamine, some 26.8 grammes of ‘Ice’, was found divided between two small resealable plastic bags and these were both inside one slightly larger resealable plastic bag which was inside a black plastic box and then inside a paper box which you were carrying in your hand. There was a clear attempt to conceal those drugs in the box which you say you brought with you to Tuen Mun.

The other drugs were found inside your trouser pockets. In your front trouser pocket the police recovered 6.63 grammes of ‘Ice’ which was in just one resealable plastic bag and two further resealable plastic bags in which the 1.26 grammes of cocaine were subdivided and then placed into a further resealable bag. The 33 tablets of nimetazepam were recovered from your back trouser pocket but these tablets were inside yet another plastic bag.

Dealing with the nimetazepam first, there can be no good reason why you would be walking around with 33 tablets of these drugs in your back pocket unless you had purchased them or were about to sell them. 33 tablets is actually a large quantity of nimetazepam and I note that they were not in a sheet but they were divided further and cut off into sub-quantities.

The amount of cocaine found in your front trouser pocket is relatively small but there is no evidence before me that you consumed cocaine, other than what you have said, and I do not accept that you would have consumed it on the back stairs of your flat over a two-week period. Again, I find it incredible that having been honest enough to tell the court that you had a drug-dealing boyfriend, you have not suggested in any way, shape or form that you consumed drugs with him. No, instead, we have you smoking something on the back stairs of your flat and that is why I do not accept it.

The ‘Ice’ which was found with it, in comparison to the two bags of ‘Ice’ carried within the box, was also small. There is evidence before me that you consumed ‘Ice’. Given the fact of the ‘Ice’ being found in your system and the different manner of concealment of that drug in a separate single bag found in your pocket and a different quantity, I am prepared to accept that this ‘Ice’ may have been for your self-consumption. And given what you said about taking the nimetazepam and the ‘Ice’ together, that a small amount of the nimetazepam may also have been for your self-consumption equally given that there is the benzodiazepine in your system.

You are now 22 years of age but you have, sadly, a significant criminal record with four matters for either possession or trafficking in dangerous drugs and two instances when you failed to answer bail. For all of those offences, those dealing with drugs, you received drug addiction treatment centre. You have most frankly said that they did not help you at all and that you recommenced taking dangerous drugs within four days of leaving DATC. But this will be your first period of imprisonment and therefore I am not going to enhance your sentence even though you appear to have learned absolutely nothing from your previous appearances before the court.

In the normal course of events if these had been individually charged, the relevant sentencing guideline for ‘Ice’ is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For between 10 and 70 grammes of ‘Ice’ the range of sentence after trial would be 7 to 11 years and for 33.43 grammes the starting point after trial would be 8 years and 6 months.

The 1.26 grammes of cocaine falls to be considered under R v Lau Tak Ming [1990] 2 HKLR 370 and for up to 10 grammes the sentencing range would be 2 to 5 years. For 1.26 grammes, therefore, the starting point after trial would be around 2 years.

Lastly, the nimetazepam, in HKSAR v Amnuaychoke Nopporn [2002] 3 HKC 640 643, Stuart-Moore J, who was the Acting Chief Judge of the High Court at the time, held:

“The question we have had to ask ourselves is whether the amount of in this case midazolam maleate being trafficked, 3.8 grammes, should have materially altered the sentence imposed on the applicant for trafficking in this amount of heroin”.

It was 15.19 grammes of heroin in the case.

“The narcotic content of the midazolam was just under 4 grammes. We consider that if this had been a further quantity of the much more harmful drug heroin, as opposed to midazolam, this would not have made more than a marginal difference if, indeed, any difference at all to the starting point the judge had correctly taken for the heroin in question. For this reason, therefore, we do not think that any further term of imprisonment by way of enhancement of the starting point taken for the heroin should have been incurred”.

The nimetazepam involved in this case, the total quantity being 0.33 grammes because it reflects the 33 tablets, has been equated, however, to ketamine for sentencing purposes in HKSAR v Wong Kin Kau [2010] 4 HKC 443. The 33 tablets would attract a starting point after trial of some 9 months. If I added all three individual sentences together, that is the ‘Ice’, the cocaine and the nimetazepam and if I take an individual approach that would make a total of 11 years and 3 months before discount without considering totality.

Mr Jim, in his written submissions, submits that the alternative approaches, that is the conversion test and the ratio test, would in fact result in very similar starting points in the region of 103 months, or 8 years and 7 months. But he has in his calculation left out the 33 tablets of nimetazepam because the narcotic content is negligible.

However, it was clearly part of the cocktail of dangerous drugs and I find that you were selling all the dangerous drugs of some type and they are all, even the nimetazepam, dangerous. Because of that, looking at the totality and because of the latent risk of you selling on or parting with those drugs which you may have consumed yourself, I am going to add just a nominal sentence of 3 months to the 8 years 7 months indicated by the other tests as that sentence better reflects your culpability. That makes 8 years and 10 months.

I will discount that sentence by 10 months to reflect that which you may have consumed yourself, which I find to be the 6.63 grammes of ‘Ice’ and some of the nimetazepam, and that reduces the starting point to 8 years. You will of course receive a full one-third discount for your timely plea of guilty at the first opportunity and you will go to prison for 5 years and 4 months.