HKSAR v. LAM KAI HUNG

DCCC93/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 93 OF 2011

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Reasons for Sentence

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1.  This morning, defendant, you appeared before me and pleaded guilty to a single charge of “Trafficking in dangerous drugs”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. The total quantity of drugs involved are, namely, 30.51 grammes of a powder containing 18.82 grammes of ketamine and 170 tablets containing 1.12 grammes of nimetazepam.

2.  The Summary of Facts, which have just been admitted by you before me, were simple and straightforward.  According to the facts, in the morning of 3 December 2010, a team of police officers conducted an anti-dangerous drug operation in the vicinity of the Tsui Ping Estate, Kwun Tong, Kowloon.  The police laid an ambush at the lift lobby, 9th floor of Tsui Ying House of the Tsui Ping Estate.  Upon seeing you acting furtively in the lobby, two policemen went forward, intercepted you, and revealed their police identities.  A search was conducted on your person.  As a result, one plastic bag which contained one transparent resealable plastic bag containing suspected ketamine (E2) and 17 foil packs containing a total of 170 tablets of suspected nimetazepam (E3) was found in the right front pocket of your jacket. 

3.  You were immediately arrested for the offence of “Trafficking in dangerous drugs” and were cautioned.  Under caution, you immediately admitted that those suspected dangerous drugs belonged to you and that you intended to deliver the same to the others.

4.  Later in the police station where you were subsequently video-interviewed, you admitted, under caution, that about two weeks before the incident you came to know a male named Ah Gun in an amusement games centre in Kwun Tong area.  When you told Ah Gun that you were in need of money, he asked you if you would like to earn quick money.  A day before you were arrested you met Ah Gun again.  He asked you to deliver the goods to the others and for that he would give you $500 as a reward.  You agreed and you realised then that those goods would be dangerous drugs.  As instructed, you were told to deliver the goods to a McDonald’s Restaurant in Tsui Ping Estate between 10 am and 11 am on the following day.

5.  According to your admission, you did take the goods back home and you had taken a look at them and you found out that the goods were indeed ‘K chai’ and ‘Ng chai’ which were dangerous drugs. 

6.  The police had estimated that the street value of E2 and E3 was HK$3,783.24 and HK$7,310 respectively.  Both E2 and E3 were later delivered to the Government Chemist where they examined them and certified that they were indeed dangerous drugs in accordance with the particulars of the charge.

7.  Finally, you admitted at the end of the Summary of Facts that you possessed those exhibits for the purpose of trafficking.

8.  You are now aged 28.  You are still single.  You live together with your family members and you were educated up to Form 4 level.  Before you were arrested, you worked as a casual restaurant worker, earning a meagre income of $2,590 only.

9.  You have two criminal records in the past, the last being a robbery offence for which you were sentenced to training centre, but that was in 2000 already.

10.  Your lawyer this morning has mitigated on your behalf, informing me that it is because of your family’s tight and severe financial situation that you came to be induced by the others to commit this serious offence.  Your lawyer submitted that you are not a hard-core criminal and submitted for my consideration a number of letters of mitigation written by yourself and also by your family members and also your employer.  I am not going to refer to those letters one by one suffice it to say that you felt very remorseful this time and you asked the court to give you a chance so that you can rehabilitate and be a useful member of society. 

11.  On top of that, your lawyer had also produced to the court some medical certificates concerning your conditions.  In particular, you are certified that you have suffered from a severe obstructive sleep apnoea, that is to say that you are having a severe oxygen desaturation during your sleep.  The doctor’s certificate said that you were treated with a CPAP, and you should bring along this machine wherever you go to be used during sleep to control your severe apnoea.  In view of your severe condition, fatal cardiac or cerebral event may occur if you suddenly stop using the CPAP.  Your lawyer also informed me that you are suffering from high blood pressure.

12.  Trafficking of dangerous drugs is, of course, a very serious offence.  Anyone who was involved in this kind of criminal activity and was caught by the police would be expected to be dealt with severely by the court.  The offence by itself is simply too serious to justify any non-custodial sentence.

13.  Your lawyer had already informed me that she had advised you on the tariff sentence and that you should understand by now that a custodial sentence is simply inevitable.

14.  Although you have not committed any criminal offence for the last 10 years, the policy consideration demands that the imposition of a substantial term of imprisonment in your case is suitable.  This court has to send a clear message to those people who are contemplating to commit a crime like this.  In recent years the abuse by the youngsters in Hong Kong of ketamine is becoming so serious that in 2008 the Court of Appeal had acceded to the request by the Secretary of Justice to upwardly revise the sentencing guideline for trafficking in ketamine.

15.  This present offence of course took place 2 years well after the new sentencing guideline was in place. 

16.  According to the case of Hii Siew Cheng [2009] 1 HKLRD 1, the new sentencing guideline for the trafficking of ketamine in a quantity between 10 to 50 grammes is between 4 to 6 years.  Insofar as ketamine is concerned, the present case involved altogether 18.82 grammes of ketamine. 

17.  I consider that a starting point of 4 years and

3 months, that is 51 months, is a suitable starting point. Insofar as the nimetazepam is concerned, I consider that the presence of this drug is relatively small. As this additional amount of the drugs did not in my view materially alter the sentence that I will impose for the ketamine, therefore, I concluded that no further term shall have been imposed in respect of this drug.

18.  The only effective mitigation in your case is of course your plea of guilty, for which you would receive the customary one-third discount. 

19.  The court would never accept mitigation because of economic pressure.  While the financial condition of your father and perhaps your younger brother maybe severe at the time, there is no excuse for you to commit crime in order to solve their problem.  Insofar as your health condition is concerned, your lawyer had properly and rightly conceded that she understands that this is not a proper ground for reducing the sentence.  I am of the view that all your medical conditions will be properly taken care by prison authority.  I shall refer the prison authority, the CSD, the medical certificate written by your doctor concerning your need to bring along the CPAP machine and I am sure your request will be dealt with properly by those officers concerned.  All in all, you will only receive a one-third discount.   

20.  Defendant, please stand up.  After reducing the one-third discount, which is 17 months, you will now receive a final sentence of 34 months’ imprisonment.