HKSAR v. LAM SING SHAN

DCCC761/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.761 OF 2010

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Reasons for Sentence

1. The defendant faces 2 charges of trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2. In relation to charge 1, it is alleged that the defendant on 7^th May 2010 outside Yiu Yat House, Tin Yiu (1) Estate, Tin Shui Wai, New Territories unlawfully trafficked in dangerous drugs, namely 27.85g of a powder containing 18.80g of Ketamine and 0.26g of a solid containing 0.25g of cocaine.

3.  In relation to charge 2, it is alleged that the defendant on the same day, inside the report room of Tin Shui Wai Police Station unlawfully trafficked in 13.21g of a powder containing 9.33g of Ketamine.

4.  The defendant pleaded guilty to both charges, admitted to the summary of facts and was duly convicted.

Summary of facts

5.  On 7^th May at around 8:28pm, 2 police officers (PW1 and 2) stopped the defendant and another male near the basketball field of Tin Yau Court in Tin Shui Wai. The defendant and that male was searched and from the defendant’s left front trousers pocket was found a plastic bag containing 101 small plastic bags. When the defendant was asked what the plastic bags were for, the defendant fled.

6.  The 2 police officers gave chase and stopped the defendant outside Yiu Yat House, Tin Yiu (1) Estate. The defendant was subdued and another police officer (PW3) was summoned to the scene for assistance.

7.  The defendant was searched again and from his right front trousers pocket was found a plastic bag containing powder inside and a plastic bag containing a solid inside (1^st batch of drugs, charge 1). The defendant was arrested and cautioned. Under caution, the defendant claimed that the drug was planted by the Police officers. The other male mentioned above and whom the police officers intercepted earlier at the basketball field was questioned, found not relating to the case and released.

8.  The defendant was brought back to Tin Shui Wai Police station. A further search was conducted on him and another plastic bag containing a powder was found from his left front trousers pocket (2^nd batch of drugs, charge 2). The defendant was arrested for this batch of suspected drugs and cautioned. Under caution, the defendant denied any knowledge of the drugs.

9.  Upon analysis, government chemist confirmed that the 1^st batch of drugs found on the defendant contained, (1) 1 plastic bag with 27.85g of powder containing 18.8g of Ketamine; (2) 1 plastic bag containing 1 plastic bag containing 0.26g of a solid containing 0.25g of Cocaine.

10.  In the 2^nd batch of drugs found, government chemist confirmed that it contained 1 plastic bag containing 13.21g of a powder containing 9.33g of Ketamine.

11.  At the time of arrest, the defendant had HKD$135.20 of cash on his person.

12.  The Police estimated the street value of the 2 batches of drugs found on the defendant to be HKD$254 and HKD$4,434 respectively.

Previous

13.  The defendant was in court on 6 previous occasions. He has 9 previous convictions, all being for possession of dangerous drugs.

Mitigation

14.  This is the defendant’s first conviction for trafficking. The defendant is 22 years old. He was educated up to Form 5 level in Hong Kong. He had worked as a delivery worker before. I was told that the defendant came from a broken family, his mother deserting the family when he was 2 years old. The defendant’s father is 70 years old, and in the defendant’s letter of mitigation, he expressed his wish to be able to serve his term and then go back to looking after his father.

Sentence tariff

15.  For sentencing in trafficking of Ketamine, the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006 applies.

16.  In relation to charge 1, there are 2 kinds of drugs involved. The Ketamine involved is 18.8g, this would lead to a starting point of around 53 months’ imprisonment.

17.  In relation to the 0.25g of cocaine, the case of R v Lau Tak-ming and Ors [1990] 2 HKLR 370 and Attorney General v Pedro Nel Rojas [1994] 1 HKC 342 apply. For narcotic contents of up to 10g, the proper starting point is between 2 to 5 years’ imprisonment. At 0.25g, the starting point would be slightly more than 24 months’ imprisonment.

18.  In relation to charge 2, 9.33g of Ketamine would have attracted a starting point of slightly less than 4 years’ imprisonment.

Sentence

19.  First of all, although it appears from the conviction record that the defendant is a drug addict, there is no evidence that any of the drugs referred in the charges were for self-consumption, nor did Ms. Chan for the defendant raised this point in mitigation. This sentence is therefore based on the premise that all the drugs were for trafficking.

20.  The defendant was last released from prison in March 2010, having served his sentence of 12 months’ imprisonment for possession of dangerous drugs imposed upon him on 12^th November 2009. The present offence was therefore committed about just 2 months after his release from prison.

21.  This is a case where, although there are 2 charges, the sentence ought to take into consideration the overall circumstances of the case. The defendant was essentially trafficking in all the dangerous drugs in one continuing operation, it was just that the drugs were found on him at different times and locations that led to different charges.

22.  If we ignore the big picture, the defendant would be facing a sentence of 53 months for the Ketamine and 24 months for the cocaine in charge 1, and say 42 months for the Ketamine in charge 2. Even if the sentence in charge 2 was to be served wholly concurrently, the defendant would be sentenced to a total of more than 6 years, which in my view is too severe under the circumstances.

23.  In our present case, the total amount of Ketamine that the defendant trafficked in was 28.13g. Applying the tariff in Hii Siew Cheng to this total amount of Ketamine would have resulted in a starting point of around 60 months’ imprisonment.

24.  Although the overall quantity of Ketamine was far more than the cocaine, the presence of this potent narcotic cannot be ignored when sentencing.

25.  Taking the combined approach, I find that for charge 1, a starting point of 63 months’ imprisonment is appropriate. This starting point takes into account both the 18.8g of Ketamine and the 0.25g of cocaine (53+10 months). I will give the defendant the full 1/3 discount for his guilty plea and reduce this sentence to that of 42 months’ imprisonment for charge 1.

26.  As for the 9.33g of Ketamine in charge 2, I will adopt a starting point of 42 months’ imprisonment, again granting him the full 1/3 discount, bringing the sentence down to 28 months' imprisonment.

27.  Taking into consideration the principle of totality, I will order that 3 months of charge 2 be served consecutively to the sentence in charge 1, the rest of the sentence to be served concurrently, taking the total term of imprisonment to 45 months’ imprisonment for both charges.