HKSAR v. LAM WAI CHUN

DCCC 1090/2022

[2023] HKDC 1597

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE 1090 OF 2022

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REASONS FOR SENTENCE

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1.  Mr Lam pleaded guilty before me to one charge of Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on 27 June 2022, on a private car bearing registration mark XA5495, near the junction of Hok Yuen Street and Hok Yuen Lane, Hung Hom, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 48.69 grammes of a solid containing 38.89 grammes of ketamine and 6.89 grammes of a solid containing 6.38 grammes of cocaine.

Facts admitted by Mr Lam

2.  At about 2:40 am[1], a private car XA5495 turned right into Hok Yuen Lane, Hung Hom, and stopped abruptly in front of a roadblock set up at the junction of Hok Yuen Street and Hok Yuen Lane.  Mr Lam the driver was alone in the car.  Mr Lam showed signs of nervousness and tried to avoid eye contact with a police constable nearby.  Mr Lam was instructed to drive to the search area.  Upon a body search, cash of $18,560 and a mobile phone were seized from Mr Lam.

3.  Car search was conducted in the presence of Mr Lam.  The following items were found:-

A. Inside the storage box of the driver’s door

(i)  A black plastic bag (E16)  containing a transparent resealable yellow and blue line plastic bag (E15)  containing E1 to E5, and E9 to E12 (see below):

(a)  40 transparent resealable plastic bags containing a total of 5.61 grammes of a solid containing 5.31 grammes of cocaine (E1)  all of which were contained in a transparent resealable plastic bag (E9);

(b)  4 transparent resealable plastic bags containing a total of 10.44 grammes of a solid containing 8.66 grammes of ketamine (E2)  all of which were contained in a transparent resealable plastic bag (E10);

(c)  4 transparent resealable plastic bags containing a total of 10.1 grammes of a solid containing 8.01 grammes of ketamine (E3)  all of which were contained in a transparent resealable plastic bag (E11);

(d)  2 transparent resealable plastic bags containing a total of 5.4 grammes of a solid containing 3.74 grammes of ketamine (E4)  all of which were contained in a transparent resealable plastic bag (E12);

(e)  one transparent resealable plastic bag containing a total of 13.2 grammes of a solid containing 10.7 grammes of ketamine (E5);

B. Inside the storage compartment next to the gear stick

(i)  one transparent resealable plastic bag containing a total of 0.91 gramme of a solid containing 0.77 gramme of ketamine (E6)  contained in a transparent resealable plastic bag (E13);

(ii)  9 transparent resealable plastic bags containing a total of 1.28 grammes of a solid containing 1.07 grammes of cocaine (E7)  contained in a transparent resealable plastic bag (E14); and

(iii)  14 transparent resealable plastic bags containing a total of 8.64 grammes of a solid containing 7.01 grammes of ketamine (E8).

4.  Mr Lam has rented the private car XA5495 on 24 June 2022 for a term of one month.

5.  Mr Lam was arrested for Trafficking in dangerous drugs.  Under caution, Mr Lam admitted that he trafficked in dangerous drugs for repayment of debts.

6.  In a subsequent cautioned VRI, Mr Lam stated, inter alia, that:

(a)  He had borrowed $100,000 from a loan shark;

(b)  He rented the private car for a month from a garage in Wong Tai Sin a few days ago;

(c)  After he rented the car, a young man (YM)  would give him instructions by phone for collection and delivery of drugs; another unknown person would collect the proceeds for delivery of drugs from him (Mr Lam)  about 4 hours after he had collected the drugs for delivery;

(d)  At about 12 am on 27 June 2022, YM gave E1 to E8 to him at the bus terminal at Kwai Chung Estate;

(e)  Between 12 am and the time when he was intercepted, he had delivered cocaine to Tsim Sha Tsui, Tseung Kwan O and Wong Tai Sin upon instructions given by YM;

(f)  He was on his way to deliver drugs to Mongkok when he was intercepted at Hok Yuen Street;

(g)  The price for the drugs was $400 for one bag, $800 for 2 bags, and $1,000 for 3 bags; YM would inform him of the price to be collected for each transaction;

(h)  He had collected roughly $10,000 for delivering drugs since 12 am on 27 June 2022 but he had handed over the proceeds before 3 am; and

(i)  His salary working as a driver was about $20,000 and the cash of $18,560 found on him was his salary received 2 days ago.

7.  The estimated street value of the cocaine in this case was $8,660; and that of the ketamine was $26,487.

8.  Mr Lam now admits that he was in possession of the dangerous drugs in this case for the purpose of trafficking.

Criminal record

9.  Mr Lam has one previous dissimilar conviction back in the year 2007.

Antecedents

10.  Mr Lam is aged 32 (31 at the time of the offence), educated to F3 level.  He was a truck driver before arrest, earning monthly income of $20,000.  Mr Lam is married with a son.  He lived in Tai Po.

Mitigation

11.  Mr Manuel Chong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Lam. The following is a summary of the mitigation submissions.

12.  Mr Lam attained F3.  He is married and has a son aged 6, who has been assessed to have special education needs and requires extra education expenses.  Mr Lam’s wife stays home to give their child day-time care.  Mr Lam became the sole bread winner of the family.

13.  Mr Lam was a driver, moving electrical appliances by day and vegetables by night.  However, due to the outbreak of COVID, Mr Lam’s services for moving vegetables were no longer required.  He suffered an income drop.  Mr Lam had to borrow to survive.

14.  The Court of Appeal in Herry Jane Yusuph [2021] 1 HKLRD 290 provides a 6-stage approach.

15.  The sentencing tariff of trafficking in ketamine of 10-50g is 4-6 years (Hii Siew Cheng [2009] 1 HKLRD 1).

16.  The sentencing tariff of heroin is applicable to trafficking in cocaine (Pedro Nel Rojas [1994] 2 HKCLR 69).  The sentencing band for trafficking in heroin up to 10g is 2-5 years’ imprisonment (Lau Tak Ming [1990] 2 HKLR 370).

17.  To adopt a purely arithmetic approach:

(a)  The starting point for trafficking in 38.89g of ketamine would be about 65 months’ imprisonment; and

(b)  The starting point for trafficking in 6.38g of cocaine would be about 47 months’ imprisonment.

18.  Individual approach of sentencing would attract a starting point of about 112 months’ imprisonment.

19.  In a case where a defendant trafficking in more than one type of drug, the sentencing court may adopt a combined approach and cross-check it by 3 tests: “absurdity test”, “conversion test” and “ratio test” (Islam SM Majharul [2020] 3 HKLRD 146).

20.  Mr Chong worked out the following figures:-

(a)  Absurdity test: ketamine – about 69 months; cocaine – about 92 months;

(b)  Conversion test: 48.59g of ketamine – about 71 months; 21.98g of cocaine – about 71 months; and

(c)  Ratio test: ratio of ketamine in total weight against tariff for ketamine + ratio of cocaine in total weight against tariff for cocaine = 72.3 months.

21.  It was submitted that in the instant case, the more serious drug in terms of potency is cocaine and should be used as the base drug in the calculation, but given the quantity of ketamine is more significant than that of cocaine, the end results of the calculations are more or less the same.

22.  It was accepted that Mr Lam was more than a courier, which makes him more culpable than a mere courier, but not much more.  It was submitted that there were more than one type of dangerous drug, which is an aggravating factor.

23.  Mr Lam pleaded guilty and is therefore entitled to the full 1/3 discount.

24.  Mr Chong submitted on behalf of Mr Lam 3 mitigation letters (in Chinese with English translation)  written respectively by Mr Lam himself, his wife, and his ex-employer.  The contents generally are that Mr Lam committed the offence at the suggestion of his creditor; that he is regretful and promises not to re-offend; that Mr Lam is a good father and husband and the economic pillar of the family; that in the past Mr Lam had performed well at work and will be re-employed by the same employer upon release.  All the letter writers asked for a lenient sentence so Mr Lam may re-unite with his family earlier and turn over a new leaf.

25.  Mr Chong also submitted 5 Chinese documents (in Chinese with English translation)  relating to Mr Lam’s 6-year-old son which showed his special education needs.  In gist, the child appeared to display slower linguistic development than the average child.

Sentence

26.  My own calculations more or less brought out the same results obtained by Mr Chong.

27.  I bear in mind the 6-step approach advocated in HKSAR v Herry Jane Yusuph (supra).

28.  I would regard Mr Lam as being more than a mere courier, which fact would attract a higher starting point.

29.  I will take the combined approach of sentencing.  I adopt an initial starting point of 71 months.  Because of Mr Lam’s status as being more than a courier and the presence of more than one type of serious dangerous drug, I would add 4 months to arrive at the final starting point.

30.  Mr Lam pleaded guilty in good time earning for himself 1/3 discount in sentence.  There are no other mitigating factors of weight to justify another reduction.

31.  I step back to look at the resulting sentence to see if it was crushing or oppressive to Mr Lam, bearing in mind a vehicle had been used in the act of trafficking and a large number of plastic bags were involved.  I conclude that the resulting sentence though by no means a light one after plea is nonetheless fair in the circumstances.

(Mr Lam, please stand)

32.  The sentence for Mr Lam is 50 months’ imprisonment.