HKSAR v . LO WAI LOK

HCCC 174/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 174 OF 2014

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: Defendant, you have pleaded guilty to two charges of trafficking in a dangerous drug contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. Both offences occurred on 2 September 2013 at Hing Tai House, Tai Hing Estate, Tuen Mun, New Territories.

In the 1st charge you have admitted trafficking in 6.52 grammes of a crystalline solid containing 6.31 grammes of methamphetamine hydrochloride.

In respect of the 2nd charge you have admitted to trafficking in 18.99 grammes of a crystalline solid containing 18.33 grammes of methamphetamine hydrochloride.

On the day in question, at about 3 pm, police officers in uniform were patrolling outside on the ground floor of Hing Tai House. They saw you and another female called Leung Pik‑kei walking together. Soon after that, you noticed the officers and threw a bag on to the ground and murmured some words to Ms Leung.

The officers intercepted you both thereafter. Upon a search of Ms Leung, they found hidden at the inner edge of Leung’s pants, a plastic bag containing the drugs in Charge 1. Nothing illegal was found upon search of your body however the bag which you had earlier thrown on to the ground was found to contain the drugs, as stated in Charge 2.

The retail value of the drugs in Charge 1, in September 2013 was estimated to be around $4,121 and in Charge 2, $12,002 respectively.

You admitted that on 2 September 2013 you gave the packet of drugs in Charge 1 to Miss Leung and you also admitted that you possessed the drugs that you threw on the ground for the purposes of unlawful trafficking.

Your counsel has mitigated thoroughly on your behalf. I have taken into account all that he has had to say. On the last occasion, that is on 16 December 2014, approximately 3 weeks ago, Mr Boey asked this court to call for two psychiatric reports as he had instructions from you that you had a psychiatric illness which may be serious and may warrant a hospital order.

He informed me that since your arrest you had been remanded at the Siu Lam Psychiatric Centre and not in the usual remand centre at Lai Chi Kok. In those circumstances I called for two psychiatric reports. They are before me today and Mr Boey says that those contents have been read and explained to you, and you agree to the contents.

It appears that the opinion of the doctors is that you are suffering from amphetamine dependence, poly substances abuse and borderline personality disorder, Dr Chiu and Dr Siu are of similar opinion.

After a period of treatment with psychiatric medicines and psychological treatment at the Siu Lam Psychiatric Centre, you are now mentally stable with no need for psychiatric inpatient treatment. You are mentally stable with no active risk of suicide or aggression. In both instances, the doctors have said that you are mentally fit to plead.

I have today also received a letter written to me by Mr Leung of the Hong Kong Christian Association of which your counsel has read to me in detail and I have taken into account the contents thereof. In summary, Mr Leung, who is a volunteer worker conducting religious classes at various correctional institutions of which you have attended his classes, is of the opinion that you are genuinely remorseful for your offences and believes that you will be able to rehabilitate with the assistance of him and God.

Defendant, you are 38 years of age and were clearly a drug addict. You have 29 previous convictions, nine for possession of dangerous drugs and four similar for trafficking in dangerous drugs. In this case, Mr Boey has correctly referred me to the guideline case of Ching Kwok Hung for the sentencing tariff in respect of trafficking in the drug “ice”.

The prosecution has applied for the enhancement of sentence against you under Section 56A of the Dangerous Drugs Ordinance, in respect of the 1st count. This is because you supplied dangerous drugs to Madam Leung for her possession when she was a minor, that is, aged 17 at the time of the offence.

In respect of the enhancement, Mr Boey has referred me to three cases, that is HKSAR v Lam Kam Kwong [2002] 1HKC 541, HKSAR v Chan Ka Shing CACC 64/2011 and HKSAR v Ng Hon Keung CACC 211/2011. In those cases the sentence was enhanced for the purposes of supplying a minor drugs for the purposes of trafficking and for larger amounts of drugs than in the present case.

Mr Boey asks this court to distinguish the present case from the other three cases, given that the drugs supplied to the minor in this case was not for trafficking, but for her own consumption and that the amount of drugs was not substantial in that it was 6.31 grammes of “ice”. Further it is the defendant’s case that Madam Leung was not a stranger to drugs when he met her and he did not introduce her to taking drugs.

In the case of Ng Hon Keung of which the date of judgment was 26 January 2012, Cheung JA, giving reasons for the judgment of the court said at paragraph 15:

“Anyone who deals with dangerous drugs will have to bear the consequences of receiving an enhanced sentence if a minor is involved in the offence. It will not be helpful to suggest any figure of increase as the degree of enhancement will depend upon the context of the case. Where the original sentence, like the present one, is already a lengthy one, a sense of proportion must be considered. To simply apply a percentage figure may result in an excessive total sentence.”

The court however, in Ng Hon Keung, did consider the enhanced percentage of two other cases that I had mentioned earlier. Those enhancements were approximately of a percentage of 15 per cent and 18 per cent where minors were recruited for the purposes of trafficking in drugs.

I have considered the fact here that the minor involved, of which you supplied drugs were for her own consumption, was 17 years of age, almost turning 18 and this was not a case of trafficking by the minor. As Mr Boey has correctly mitigated, your strongest and greatest mitigating factor is your plea of guilty.

I accept that you are a victim of your own drug addiction and as stated by Mr Leung, the volunteer worker, you are deeply remorseful for your crimes.

Defendant, the total amount of “ice” that you were trafficking in, that is, in respect of both Charges 1 and 2, was 24.64 grammes. In following the tariff guidelines laid down in Ching Kwok Hung, the starting point I would have taken had you been convicted after trial would have been 7 years and 6 months’ imprisonment.

In respect of the application for enhancement of sentence, because a minor was involved in Charge 1, I enhance that starting point by 6 months. That makes a total sentencing point of 8 years’ imprisonment.

You have pleaded guilty to both charges and you deserve the full one-third credit on discount, as there are special circumstances on the papers which justify a lenient view to be taken on the facts, I further reduce your sentence to a discount of 45 per cent.

May I ask you please, to stand up, defendant. The total sentence therefore, to which you shall serve shall be 4 years and 5 months’ imprisonment for both charges. Let me now break down the sentence for each charge.

On Charge 1, I would have taken a starting point of 5 years’ imprisonment, had you been convicted after trial. That sentence warrants an enhancement because a minor was involved and therefore that sentencing point should be 5 years and 6 months’ imprisonment. Taking into account the special circumstances and your plea of guilty, that term should be reduced by 45 per cent and the sentence on Charge 1 shall be 3 years’ imprisonment.

On Charge 2, I would have taken a starting point after trial of 7 years’ imprisonment. Giving you full credit for your plea of guilty and the special circumstances, giving a discount of 45 per cent, you shall be sentenced on that charge to 3 years and 10 months’ imprisonment.

So as to reflect the total sentence of 4 years 5 months’ imprisonment, I order that 1 year and 5 months’ of Charge 2 is to run consecutive to Charge 1 and the remaining terms to run concurrent.