HKSAR v. LAM SZE WAI

DCCC 669/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 669 OF 2013

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

2.  You admitted that on 16 May 2013 outside the ground floor of Fai Lam House, Tsui Lam Estate, Tseung Kwan O, you unlawfully trafficked in 0.23 kilogrammes of a powder containing 0.18 kilogrammes of ketamine, otherwise purity of ketamine being 180 grammes.

3.  In the early hours of 16 May, just after midnight, police officers were patrolling in Tsui Lam Estate.  They saw you walking towards them then suddenly make a turn walking away from them very quickly. 

4.  Feeling suspicious, they intercepted and conducted a body search upon you.  They found in the bag you were carrying drugs contained in one large resealable plastic bag.  You told the officers that the drugs were ketamine.  Inside the bag that you were carrying was also a box of transparent resealable plastic bags.

5.  I have looked at these bags and the drugs in the photo album.

6.  When you were arrested for trafficking in a dangerous drug, you said that the drugs were for your own consumption and it would be cheaper upon bulk purchase.

7.  In a video recorded interview, you went on to say that you had been a drug addict for eight years.  You had consumed 4 to 5 grammes of ketamine a day and you had purchased the drugs earlier on that evening (that would be on 15 May at about 8 pm) and you were a chef earning $8,000 a month. 

8.  The drugs in question were valued at $27,370.

9.  Your solicitor, Mr Kong Chi-keung, has mitigated fully and thoroughly on your behalf today.

10.  You are 26 years of age, have had four previous court appearance, of which you have five previous convictions.  The last conviction was a related offence to drugs, which was of possession of dangerous drugs to which you were sentenced to 6 months’ imprisonment suspended for 24 months on 1 February 2013.

11.  You, therefore, committed this present offence during the time that you were under a suspended sentence.

12.  You are 26 years of age, single and living with your parents.  As I stated, you are a chef earning $8,000 a month.

13.  Mr Kong has said that you committed this offence because you are a drug addict.  He has mitigated that part of the drugs in this case were for your own consumption.  He, however, said that you do not wish to say how much were for your own consumption and requested that no Newton hearing be held to determine the amount you say was for your own consumption.  It is submitted by Mr Kong that it is for the court to accept whether part or no part was for your own consumption.

14.  I have looked at the packaging of the drugs. The drugs were contained in one large packet, similar to a sandwich packet, of about 10 centimetres in size. The remaining plastic bags were of similar size.

15.  You were found in the streets after midnight, some 4½ hours after you purchased these drugs. The drugs in question were of a very large amount and were of a high value, of $27,000-odd dollars.

16.  Although I accept that you are a drug dependent, I cannot accept that these drugs that were found that evening were for your consumption because of the manner they were found in the one big plastic bag with the other plastic bags.  You were away from home in the middle of the night, you had ample time to go home after the purchase of the drugs; the drugs were of high value, the quantity was large.  Having regard to all these factors there is a very strong inference that they were in your possession for the supply of drugs to others.

17.  In respect of your consumption rate, in your video interview, you said that you consumed 4 to 5 grammes of ketamine a day.  Based on the value of these drugs, 1 gramme of ketamine would cost $152.  If you were to consume 5 grammes a day, that would mean you would consume $760 worth of drugs a day.  If you were to take that amount a day and times that by 30 days, that would mean your consumption rate of drugs would be $22,800 a month and your earning as a chef was $8,000 a month.

18.  In consideration of that, obviously your income could not have supported your alleged drug dependency.  In the circumstances, based upon the above factors I was satisfied that your possession of these drugs point clearly to the only inference that these drugs were only for the supply of drugs to others.

19.  I, therefore, consider that the whole 180 grammes, or 0.18 kilogrammes of drugs were for trafficking.

20.  As your solicitor has rightly pointed out, the tariff guideline case for trafficking in ketamine is the case of Hii Siew Cheng and, taking into account the amount of drugs that you had for trafficking, of 180 grammes of ketamine, the appropriate starting point would be one of 7½ years’ imprisonment.

21.  In the circumstances Defendant, that would be the starting point that I would have taken had I convicted you after trial. 

22.  Defendant, your strongest mitigating factor is your plea of guilty.  Giving you full credit for your plea that sentence shall be reduced by one-third and you shall be sentenced to 5 years’ imprisonment.

23.  Defendant, as I mentioned earlier, you committed this offence whilst under a suspended sentence. 

24.  I see no reason not to activate that sentence and, in those circumstances, the 6 months’ imprisonment on that sentence (that is in KT 67/2013) be activated and shall be served consecutively to this term of imprisonment.

25.  Your total term of imprisonment would, therefore, be 5 years and 6 months’ imprisonment.