HKSAR v. LAM HON WAI

DCCC 957/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 957 OF 2012

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Reasons for Sentence

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1.  Defendant has pleaded guilty to an amended charge of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134.

2.  The defendant has pleaded guilty to possession of 16.67 grammes of a powder containing 13.26 grammes of ketamine, 86 millilitres of a liquid containing 17.88 grammes of gamma-hydroxybutyric acid (“GHB”) and traces of methamphetamine and 1.96 grammes of a powder containing 0.37 grammes of TFMPP and 0.09 grammes of ketamine.  In short, he was in possession of a cocktail of dangerous drugs, three types in particular, two of insignificant quantities.

3.  This case was adjourned before plea in order to obtain an expert report on the little-known effects of GHB and TFMPP.  A Doctor Lau Fei-lung prepared such report and I have been referred to it. 

4.  The facts of this case are as follows:-

On 27 June 2012, the police approached the defendant sitting alone in his vehicle. The defendant upon seeing the officers drove away leading to there being a chase by the police in a police vehicle. During the course of this chase, the defendant threw something out of his window. The chase was over after about 2 minutes when the defendant was stopped. The police searched the defendant and found one plastic bag containing 2.82 grammes of a powder containing 2.26 grammes of ketamine and three glass bottles containing the liquid containing 17.88 grammes of GHB. The bag that he threw out of the car window was also recovered. In that bag the police found six plastic bags. Five bags contained a total of 11 grammes of ketamine and the sixth bag contained the TFMPP and a small quantity of ketamine. The bag also contained some tablets and tablet fragments which were not subject to the charge.

5.  Under caution, the defendant admitted that the drugs belonged to him and were for his self‑consumption.  He told the police that he had bought the drugs that evening in Temple Street for a total of $4,000.  

6.  Defendant’s best mitigation is his plea of guilty.  He has two previous convictions, one for dangerous driving and one for trafficking in dangerous drugs.  For that offence he was sentenced in May 2008 to 46 months’ imprisonment.  The defendant was released for that offence from prison on 26 June 2010.  For this offence, he has been in custody since his arrest.

7.  After the defendant’s plea, I adjourned sentence for a Drug Addiction Treatment Centre report.  I will not repeat the contents of the report but I have taken them all into account.  The report ultimately concludes that as of now he is no longer a drug-dependant and therefore not suitable for admission into Drug Addiction Treatment Centre.

8.  Defendant is 30 years old and at the moment single and living with his parents.  His parents are retired and not in good health.  They rely on the defendant financially.  The defendant was and is a dim sum chef and has worked in the restaurant trade since he left school.  His parents have written a letter to the court asking the court for lenience.  I have heard full mitigation on the defendant’s behalf.

9.  Defence counsel has also admitted that there is a latent risk that exists but it is not a high risk that some of the drugs may fall into other’s hands.  Prosecution submits otherwise and submits the risk is high considering the quantity and types of drugs involved.

10.  The authorities on latent risk are clear.  If a person is in possession of dangerous drugs and there is, looking at the circumstances of the offence and the background of the defendant, a risk that the dangerous drugs in his possession may find their way into other’s hands apart from the defendant, then a latent risk exists and there may be an enhancement to a sentence.  This approach has been endorsed by the Court of Appeal in many authorities.  I referred myself to the authority of HKSAR v Wan Sheung Sum [2001] HKLRD 405.  At page 407 of that authority the Court of Appeal endorses a three-step approach to sentencing. 

11.  I have also referred myself to other authorities, HKSAR v Minney, John Edwin, CACC383/2010 as well as HKSAR v Mok Cho Tik, [2001] HKC 261.  Both authorities are very helpful and discuss in detail when and how the latent risk sentencing principle should be handled. 

12.  In this case the defendant was in possession of the dangerous drugs in his vehicle.  He was arrested in the Kwai Chung area.  He lives in Tsing Yi and he told the police that he bought the drugs in Temple Street.  It is relevant that the drugs were found in his person, in his vehicle and not at home.

13.  I also looked at the types of dangerous drugs involved, the quantity of the dangerous drugs and in particular the packaging of the ketamine and the GHB.  I also take into account the defendant does have a previous for trafficking dangerous drugs.  I am satisfied that there is a risk that the dangerous drugs may or could fall into other’s hands, a risk of dissemination.

14.  After considering the authorities I have referred to, the facts of the case, the cocktail of drugs and the quantity as well as mitigation put forward.  For this offence, I take a starting point of 21 months because of the significant quantity of the different dangerous drugs.  I will enhance this starting point by six months to take into account the latent risk of redistribution of some of the drugs.  Lastly, I will discount that 27 month starting point by one-third for the defendant’s plea, that is a discount of 9 months.

15.  The defendant is sentenced to a total of 18 months’ imprisonment.