HKSAR v. SAE LAM EKAPOJ

HCCC 424/2017

[2018] HKCFI 2061

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 424 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant was originally charged with one count of trafficking in dangerous drugs with one count of tenant permitting premises to be used for trafficking as alternative. He pleaded not guilty to the trafficking count and pleaded guilty to the tenant permitting trafficking count. The plea to the alternative count was accepted by the prosecution. Upon his guilty plea and admitting of the Summary of Facts, the defendant was convicted of the tenant permitting trafficking count, that is the 2nd count in the indictment and the 1st count of trafficking dangerous drugs be left on court file.

The facts of the case may be summarized as follows.

On 19 October 2016, when the defendant was leaving a room in a residential flat, he was stopped by police officers. A search warrant was executed and police entered the room where a male and a female were found. Inside the living room of the room, the following items were amongst other things found:

(1) 9.22 grammes of a solid and 0.09 grammes of a powder containing 7.84 grammes of cocaine;

(2) 6.69 grammes of a solid containing 3.21 grammes of ketamine;

(3) 30.18 grammes of crystalline solid containing 29.42 grammes of methamphetamine hydrochloride;

(4) one electronic scale; and

(5) a large number of transparent resealable plastic bags.

Under caution, the defendant said the dangerous drugs did not belong to him, they belong to that girl “Tracy”. He was permitted to reside in the room several days ago by a friend who asked him to look after the place. He was identified by the landlady to be the person who paid the deposit and monthly rent to her in cash. The landlady said defendant came together with the female called Chan to view the room on 18 May 2016. There was no written tenancy agreement.

The defendant now admits that he was the tenant and permitted the flat to be used for unlawful trafficking of the dangerous drugs found.

I was told that the defendant is a Portuguese, now 45 years of age. He attended a degree course for one year when he was serving sentence in 2014. Since 2016, he have been employed as a project manager in a construction company, earning a stable income of about $20,000 a month.

The defendant is not a first time offender. Indeed on 24 previous occasions he have been convicted. The offenses for which he had been convicted included the followings:

(1) Trafficking in dangerous drugs in the years 2004, 2005 and 2011. And for the last conviction he was sentenced to 6 years’ imprisonment;

(2) In 2005, he was also convicted of keeping a divan and;

(3) The other offenses he had committed were mostly for theft related offenses.

Learned counsel for the defence, Mr Donald, informed the court that the defendant was not living in the place where the dangerous drugs were found. He was only asked by a long term friend, a Ms Chan, approximately two days prior to the incident to look after the room saying that she was, at that time, arrested and remanded but she believed she was soon to get bail and would then be back to look after the place. He had also paid the rent out of his own pocket on the request of this friend.

Ms Chan, however, was not released and indeed is now serving a long term sentence. The defendant could have access to the room because he knew the code of the digital lock. Other people also knew the code.

On the day in question, when the defendant was in the room, two friends of Ms Chan came with the dangerous drugs which were later found. He has nothing to do with the drugs but he knew this sort of things would happen on occasions and he admitted to have allowed the premises to be used for trafficking of dangerous drugs on social basis and friends of Ms Chan would consume drugs there.

As regards the time of plea, Mr Donald informed the court to note that when the defendant appeared in the Magistrates’ Court, the tenant permitting trafficking count had not been put to him and the Summary of Facts then prepared was on the basis of trafficking in dangerous drugs. It was only after the case had been committed that the alternative charge appeared. The plea bargain then took place and the proposed plea was accepted by the prosecution.

In these circumstances, Mr Donald urged the court to accept that the defendant had pleaded guilty at the earliest opportunity. Counsel for the prosecution, Mr Ross, confirmed the chronology of events and that the prosecution would not take issue in relation to the facts of the case as asserted by the defence in mitigation. I will therefore consider sentence on that basis.

The offence carries a maximum sentence of 15 years’ imprisonment. There is no sentencing tariff as the gravity of the offence varies greatly in different cases. In sentencing, I have had regard to cases such as R v Lee Kwok Keung CACC 595/1996, HKSAR v Lam Lai Chu CACC 56/2003, HKSAR v Ho Wing To [2011] 4 HKLRD 465 and HKSAR and Suen Wing Lam CACC 49/2011.

Despite the defendant was only looking after the room upon the request of a friend, he admitted to be the tenant and that he was aware all along that the room would be used for trafficking of dangerous drugs. Even if such trafficking was on social basis, the Court of Appeal took a serious view as stated in HKSAR v Wong Suet Hau CACC 366/2000.

The dangerous drugs found were all serious in terms of harm. There were three different types of drugs. Amongst them, ‘Ice’ was of substantial quantity. Quantity of the other two drugs was not minimal. They were not concealed and were all put inside glass or plastic bottles or transparent plastic bags on two different tables in the living room. The room was not big. The area of the whole room was about 400 square feet inside which were a living room and a canopy area.

Having regard to the criminal conviction record which shows the defendant did not lack experience in handling of dangerous drugs and officers entered the room soon after the interception of the defendant, I find it is the only reasonable inference that the drugs were already displayed in the room in the state it was found before the defendant came out of it. I found the defendant was aware that the quantity of the dangerous drugs inside the room was not small and that there were more than one type of drug.

Although the defendant viewed the room about half a year prior to the arrest and he had been paying the monthly rental, evidence is not sufficient to prove that he had been staying in the flat all the time since then. According to the assertion of the defendant, the drugs were only brought to the room shortly before the arrival of the police. There is no evidence as to the exact manner in which the dangerous drugs would have been trafficked. There is no evidence that the defendant permitted the use of the room for trafficking purpose for a reward. He said he was only helping a long term friend to look after the room.

I am of the view that the defendant’s previous convictions of dangerous drugs related offences amounts to an aggravating features, even though this is the first time the defendant has been convicted of the present offence. For this factor, I will enhance the starting point by 6 months. In all the circumstances I adopt an ultimate starting point of 3½ years.

An accused is entitled to a one-third discount if there is a timely guilty plea. Having accepted what Mr Donald said in mitigation, I am of the view that what happened was less than a timely plea. The indictment which includes the alternative count was signed on 27 November 2017. The case was on 17 January 2018 set down for trial to start on 17 August 2018, that is today. At that time the defendant was already legally represented. Obviously there was no indication of a possible guilty plea to the Listing Judge.

Mr Ross said he could vaguely recall that plea bargain started about three months ago. It was definitely after the case was set down for trial. On 18 May 2018, the prosecution informed the court by letter that there have been plea bargain and a guilty plea to Count 2 would be accepted. Having regards to HKSAR v Ngo Van Nam CACC 418/2014, the defendant will not enjoy a one-third discount as before this case was decided.

In all the circumstances, I will give him a discount of 10 months for his guilty plea. Having considered the circumstances including mitigation submission, I am of the view that this is extend of discount the defendant is entitled to.

For the reasons I have said, I sentence you to 2 years and 8 months’ imprisonment for Count 2.