HKSAR v. LAM CHI TAK

CACC 174/2023, [2024] HKCA 506

On Appeal From [2023] HKCFI 2790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 174 OF 2023

(ON APPEAL FROM HCCC NO 129 OF 2023)

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J U D G M E N T

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1.  The applicant pleaded guilty before a magistrate, on 15 May 2023, to one charge of trafficking in dangerous drugs (together with one Mok Chi-ho (“D1”)), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (“Count 3”), and another charge of simple possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the same Ordinance (“Count 4”). On 15 September 2023, having confirmed his pleas before Deputy Judge Anthony Kwok (“the judge”) in the High Court, he received a total sentence of 6 years and 4 months’ imprisonment. By his Form XI Notice filed on 27 September 2023, he seeks leave to appeal against his sentence.

Facts accepted by the applicant

2.  When confirming his plea of guilty, the applicant accepted a set of facts detailing the background and evidence relevant to four counts on the indictment: namely, Counts 1 and 2 against D1 alone; Count 3 against D1 and D2 (who is the applicant) jointly; and Count 4 against D2 alone.  However, the Court is only concerned with this applicant’s sentence.

3.  The facts arose in this way.  At 11:45 pm on 17 April 2021, the police responded to a call that there was an unconscious male inside a room of the Emperor Hotel in Happy Valley (“Location 1”).  The male was confirmed dead by an ambulanceman a few minutes later.  At that time, D1 was present in the room, in which dangerous drugs, inhaling apparatus and syringes were also found.  D1 falsely told the police that his name was “Chan” and the deceased’s name was “Mok”, when the reverse was true.  It seems that the reason D1 engaged in this subterfuge was because he knew there were three outstanding warrants for his own arrest at the time.  These facts constituted Count 1 against D1 alone, of doing an act tending and intended to pervert the course of public justice.

4.  On 18 April 2021, D1 was escorted to a room reserved under his name at the Hotel Ease Causeway Bay, in Wan Chai (“Location 2”) and was arrested for the possession of the dangerous drugs found inside that room (Count 2 against D1 alone).  In a subsequent video-recorded interview, D1 claimed that, on 17 April 2021, he asked his friend, the applicant, to come to Location 1 and help inject a “slam” mixture into the body of one Ah K, who was another friend of D1.  Later, at the invitation of Ah K, the deceased also came to Location 1, and consumed 5-6 ml of “G Water” without diluting or mixing it in a drink.  It was specifically accepted that the normal dosage was about 0.5-1 ml each time and consuming more than that would lead to over dosage and death. 

5.  At about 5:30 pm on 19 April 2021, the applicant was located by police at premises in Wing Lung House, Fuk Loi Estate, Tsuen Wan (“Location 3”), of which the applicant was the registered tenant.  The following items were found inside those premises and form the basis of the trafficking count in Count 3:

(a)  31 grammes of a crystalline solid containing 30.65 grammes of methamphetamine hydrochloride (commonly known as “Ice”);

(b)  0.29 gramme of a solid containing 0.24 gramme of 3,4-methylenedioxymethamphetamine and traces of methamphetamine (“MDMA”); and

(c)  5,669.67 grammes of a liquid containing 5,569.23 grammes of gamma-butyrolactone (“GBL”).

6.  At around 9:00 pm the same day, the applicant was escorted to a room at the Hotel Pravo in Tsim Sha Tsui, Kowloon (“Location 4”), of which he was a registered occupant.  There, in a safe opened using the passcode provided by the applicant, was discovered the subject matter of Count 4, which was a count of simple possession, namely:

(a)  83.2 grammes of a liquid containing 77.1 grammes of GBL;

(b)  1.21 grammes of a crystalline solid containing 1.21 grammes of “Ice”; and

(c)  0.63 gramme of MDMA.

7.  In a subsequent video-recorded interview taken under caution, the applicant stated, inter alia, that he had first met D1 in December 2020 through an online platform for homosexuals; D1 would then contact him for the injection of diluted “Ice” shots.  On 17 April 2021, he was asked to help give D1 an injection at Location 1 but he subsequently found D1’s arm to be too swollen to be suitable for such injection.  He denied giving D1 or Ah K any injections and said that he had left Location 1 before the deceased arrived.

8.  The applicant accepted that he was trafficking in the dangerous drugs in Count 3 with D1, and was in possession of the dangerous drugs in Count 4.  He further admitted that the estimated street value of the Ice in Count 3 was HK$16,957. 

Mitigation

9.  The applicant was single and 38 years of age, having received education up to Form Five level.  He had worked as a salesman but was unemployed at the time of arrest and living on social security. Amongst his three appearances before the courts, he had six previous convictions, including one for possession of dangerous drugs in September 2006, and two for trafficking in dangerous drugs in April 2019, for which he was sentenced in the High Court to concurrent terms of 5 years’ imprisonment. 

10.  It was submitted on behalf of the applicant that, due to the trauma he suffered following the deaths of his parents in 2018 and 2020, he had relapsed into taking dangerous drugs following his release from prison in September 2020, after which he committed the present offences.

11.  Defence counsel also produced the results of a urine test taken by the applicant on 23 April 2021, in which he had tested positive for “Ice”^[1]. It was submitted that part of the “Ice”, which formed the subject matter of Counts 3 and 4, was intended for his own consumption, and that he would use approximately 1 gramme of “Ice” per day^[2].

Sentencing

(Count 3)

12.  In relation to Count 3, the judge stipulated the respective starting points for each type of drug particularised and the quantity involved: namely, 8 years and 5 months’ imprisonment for the “Ice”; 6 months’ imprisonment for the MDMA; and 4 years and 8 months’ imprisonment for the GBL^[3]. He identified these starting points by reference to the relevant sentencing guidelines in HKSAR v Tam Yi Chun^[4] and HKSAR v Ko Wai Shing^[5].

13.  Since three types of drugs were involved, the judge adopted a combined approach, using “Ice” as the base drug and applying the crosschecks of the “absurdity test” (26 years and 7 months), the “conversion test” (8 years and 8 months) and the “ratio test” (4 years and 9 months)^[6]. The judge adopted 8 years and 8 months’ imprisonment as the starting point for Count 3, noting that the starting point for the “Ice” alone would have been 8 years and 5 months’ imprisonment.

14.  By reference to HKSAR v Herry Jane Yusuph^[7], the judge accepted that, as distinct from the more culpable role played by D1, the applicant was storing the drugs for D1.  Accordingly, he considered there was no basis for increasing the starting point, given the role played by the applicant.

15.  However, taking into account the applicant’s previous convictions in 2019, which similarly involved trafficking in “Ice” and GBL, and the fact that Count 3 was committed a mere 7 months after his discharge from prison for similar offences, the judge enhanced the starting point by 6 months to 9 years and 2 months’ imprisonment^[8].

16.  Given that there were three kinds of dangerous drug involved, which could cater to a wider market, the judge said^[9]:

“In this case the presence of GBL together with ‘Ice’ is of course an aggravating factor that cannot be ignored. The danger of consuming ‘Ice’ and G water is illustrated by the death or the sudden death of the deceased person in this case.”

17.  Accordingly, he further enhanced the starting point by 4 months to 9 years and 6 months’ imprisonment. 

18.  Having accepted the mitigation that a certain, but not significant, amount of Ice and GBL would be intended for the applicant’s own consumption, the judge exercised his discretion to reduce the starting point by 3 months to 9 years and 3 months.

19.  The judge gave the applicant a full one-third discount for his timely plea, but found that “personal and family circumstances virtually play[ed] no part in mitigation”^[10]. The resultant sentence in respect of Count 3 was thereby reduced to 6 years and 2 months’ imprisonment.

(Count 4)

20.  As regards Count 4, after considering the authority of HKSAR v Mok Cho Tik^[11] and bearing in mind that the applicant was both an abuser and trafficker of dangerous drugs at the time of the offence and the latent risks involved, the judge adopted a starting point of 15 months’ imprisonment, which he discounted by one-third to 10 months’ imprisonment for the applicant’s plea^[12].

21.  In addressing totality, the judge noted that Counts 3 and 4 “actually concerned two different batches of drugs”^[13], and thus ordered that 2 months of the sentence on Count 4 should run consecutively to the sentence on Count 3, resulting in an overall sentence of 6 years and 4 months’ imprisonment.

Grounds of appeal against sentence

22.  In his Form XI Notice, the applicant has advanced three grounds of appeal against sentence.  By Ground 1, the applicant complains that there was insufficient linkage between the death of the deceased for consuming a combination of dangerous drugs, and the batch of drugs in which he was trafficking.  He contends that the judge erred in regarding this fact as an aggravating factor to enhance his sentence by 4 months’ imprisonment. 

23.  By Ground 2, the applicant criticises the judge for wrongly ordering 2 months of his sentence on Count 4 to run consecutively to his sentence on Count 3, notwithstanding that both offences took place on the same day.

24.  By Ground 3, the applicant accuses his trial counsel of not informing the judge of several matters, which he asserts are relevant and valid mitigation.  These matters are said to stem from his instructions, which included his denial of knowledge of the dangerous drugs at his residence, or any role played by him in any trafficking.  The applicant maintains that the only reason he decided to plead guilty was his acceptance that he had failed to manage his residence properly by giving D1 free access to it and, as a result, and unbeknownst to him, D1 kept the dangerous drugs there. Whilst not seeking to challenge his conviction, the applicant argued that the judge was not informed of these important matters and his sentence was thereby unreasonably enhanced.

25.  In a letter filed with the court on 5 January 2024, the applicant repeated the same complaints.

The respondent’s submissions

26.  Mr Daryanani, on behalf of the respondent, submitted that the total sentence of 6 years and 4 months was within the appropriate range for trafficking in the cocktail of dangerous drugs concerned. In particular, the 6 months’ enhancement for the applicant’s recidivism was well-supported by appellate authority, since the applicant had committed the same offence involving the same drugs a matter of 7 months after completing a sentence of 5 years’ imprisonment passed by the High Court: see HKSAR v Har Tsz Yui^[14].

27.  As for the enhancement of 4 months’ imprisonment for the cocktail of dangerous drugs involved, this was acceptable given that three different types of dangerous drug were involved; and Counts 3 and 4 were separate batches of dangerous drugs.

28.  The respondent relies in particular on what the Court said in HKSAR v Ng Yu Tin^[15] that, “the Court of Appeal is more concerned in drugs cases with the end result than the method by which the sentence has been reached…”  He submits that the overall sentence of 6 years and 4 months’ imprisonment in the present case following pleas of guilty cannot be impugned.

29.  Mr Daryanani submits that the respondent did not deem it necessary to explore the allegations of flagrant incompetence based on the present materials.  The applicant had clearly pleaded guilty to trafficking before a magistrate, which he then confirmed before the High Court.  He could not conceivably have done so if he did not know about the presence of dangerous drugs, or if his instructions to his lawyers were that he did not have anything to do with the dangerous drugs.

Consideration

30.  It is complained that the judge enhanced the sentence because of the deadly interaction of “Ice” and GBL in the case of the deceased, which was not linked to Count 3 and was not the applicant’s fault.  However, I do not think the judge was doing any more than acknowledging that GBL is a particularly dangerous drug when taken to overdose or in conjunction with other drugs, as plainly demonstrated by the death of the deceased.  This was a matter comprehensively reviewed by the Court in Ko Wai Shing, which held[16]:

“…we do know that GBL is a potent dangerous drug with the capacity to result in overdose, even death, with a slightly excessive quantity …”.

Moreover, the Court in Ko Wai Shing also accepted the evidence given before it by Dr Tang Wai Kwong, who, among his other titles and designations, is a Professor in Psychiatry at the Chinese University of Hong Kong, that[17]:

“…the abuse potential of GBL may be greater than GHB. He also noted that GBL is often used with other drugs, particularly, cannabis, alcohol and ecstasy”.

31.  The fact is that the applicant pleaded guilty to both Counts 3 and 4, which involved quantities of three dangerous drugs, namely “Ice”, MDMA (ecstasy) and GBL.  It is well documented in the authorities that both ecstasy and GBL are frequently taken in combination with other drugs, which can lead to fatality either by themselves or in combination with those other drugs: see Secretary for Justice v Hii Siew Cheng (in respect of ecstasy)[18] and Ko Wai Shing (in respect of GBL) (above).  Accordingly, it is not reasonably arguable to suggest that the enhancement of 4 months’ imprisonment for the multiplicity of these particular dangerous drugs was wrong in principle and/or manifestly excessive.  The enhancement could, in fact, have been more.

32.  Nor is the enhancement of 6 months’ imprisonment for the applicant’s previous similar record impeachable.  The Court’s recent decision in HKSAR v Lee Ming Ho[19] has preserved this factor as a specific aggravating feature, which is not part of a defendant’s role and culpability and is to be treated separately as a matter calling, where appropriate, for specific enhancement.

33.  The question does arise, however, whether the totality of the two enhancements together led to an inflated starting point.  Having examined the judge’s reasons for sentence, I do not think it is reasonably arguable that 10 months’ enhancement for these two factors added together was wrong in principle and/or manifestly excessive.  Indeed, I have already observed that the 4 months’ enhancement for the cocktail of drugs could have been more.  Besides, the judge was alive to the issue of totality, because he said as much when sentencing the applicant[20].

34.  As for the alleged impropriety of making 2 months of the sentence on Count 4 consecutive to the sentence on Count 3, this argument is also not reasonably arguable.  These were distinct batches of dangerous drugs, kept at the applicant’s home and in another hotel room altogether, for reasons which were never satisfactorily explained.  The latent risks associated with keeping dangerous drugs in a hotel room are obvious.

35.  As Mr Daryanani has correctly submitted, the Court of Appeal will ultimately only be interested in the overall sentence passed on the applicant and not with the mechanics by which the judge arrived at that sentence.  I do not see any reasonable argument that the sentence of 6 years and 4 months’ imprisonment was manifestly excessive and/or wrong in principle given the facts and aggravating features present. 

36.  Finally, the applicant has complained about the conduct of his counsel at trial.  I see no justification whatsoever for such a complaint.  The applicant pleaded guilty before a magistrate and confirmed his pleas before the High Court.  Only he could do that.  He could not have pleaded guilty if he did not know there were dangerous drugs in the two locations in question, nor would any lawyer have proceeded on the basis that he was guilty unless the applicant accepted that he was knowingly trafficking and in possession of those two batches of drugs.  There is nothing to this complaint and leave must be refused.

Loss of time warning

37.  Leave to appeal against sentence having been refused, the applicant is advised that he has the right to renew his application for leave before the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for the loss of any time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of his application.

[1]  The applicant’s urine test report dated 26 May 2021: Appeal Bundle (“AB”), pp 46-47.

[2]  AB, p 42 at [4]-[6].

[3]  AB, p 22A-H.

[4]  HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.

[5]  HKSAR v Ko Wai Shing [2021] 5 HKLRD 724.

[6]  AB, pp 22S-23C.

[7]  HKSAR v Herry Jane Yusuph[2021] 1 HKLRD 290, at [59].

[8]  AB, p 24C-K.

[9]  AB, p 24P-R.

[10]  AB, p 21L-N.

[11]  HKSAR v Mok Cho Tik [2001] 1 HKC 261.

[12]  AB, pp 25R-26E.

[13]  AB, p 27E-F.

[14]  HKSAR v Har Tsz Yui [2020] 1 HKLRD 307, at [15], [17] and [19]-[21].

[15]  HKSAR v Ng Yu Tin (Unrep., CACC 136/2020, 10 September 2021), at [25], per Macrae VP.

[16]  Ko Wai Shing, at [49].

[17]  Ibid., at [52].

[18]  Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, at [37]-[39].

[19]  HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186, at [70].

[20]  AB, p 27G.