HKSAR v. LO TSZ KIN

DCCC 1088/2020

[2021] HKDC 1554

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1088 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

Facts

2.  The defendant and another male were standing on the road next to a parked car when uniformed police on patrol approached them.  The defendant suddenly ran away towards the sidewalk and he was intercepted.

3.  Upon search, the items were found in the right rear pocket of the defendant’s jeans which were later confirmed by the government chemist to be one transparent resealable plastic bag containing 25 resealable transparent plastic bags (each containing crystalline powder)  with a total of 19.8 grammes of a powder containing 17.1 grammes of ketamine, one transparent resealable plastic bag containing 20 resealable transparent plastic bags (each containing crystalline powder)  with a total of 7.88 grammes of a powder containing 6.83 grammes of ketamine, cash of HK$262 and RMB¥507, 2 iPhones (1 iPhone XS and 1 iPhone 6).

4.  The defendant was arrested and under caution, he stated that the ketamine was for his own consumption.

5.  The market value of the dangerous drug is estimated to be HK$15,528.48.

Criminal Record

6.  The defendant has a clear record.

Mitigation

7.  The defendant is aged 28.  He is single and received education up to Form 4.  His parents were divorced and he lived with his father and elder sister.  The defendant was self-employed being a driver of a light goods vehicle earning about HK$20,000 per month.  It was said that the vehicle was purchased by his father but was given to him for use at the material times.  He has a clear record.  He is deeply remorseful towards the offence and he is not a drug addict. 

8.  It was said that in August 2020, the defendant planned to buy a nice watch to his father as his birthday present and in order to show his father and elder sister his love and concern. But as he did not have sufficient cash at the time, he acceded to the adverse influence by his friend and committed the present offence in order to earn more money.  The stupid and unwise decision by the defendant led to his arrest which was just 3 days before his father’s birthday.  The defendant vows not to reoffend.

9.  Defence counsel conceded that following the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the defendant here trafficked 23.93 grammes of ketamine, the sentencing starting point would be 56.4 months’ imprisonment.

10.  He also conceded that apart from the usual one-third sentencing discount, there would be little room for further reduction of the sentence.

Discussion

11.  Before sentencing, this court has sincerely considered all that was submitted on behalf of the defendant including the mitigation letter written by the defendant. 

12.  Trafficking in a dangerous drug is a very serious and upon conviction on indictment, a person is liable to a fine of HK$5 million and life imprisonment.  Personal background is seldom a valid mitigating factor.

13.  As conceded by defence counsel, the sentencing starting point for trafficking in 23.93 grammes of ketamine is 56.4 months’ imprisonment. 

14.  Urine test confirmed the defendant is not a ketamine user and all drugs therefore involved are for trafficking purpose.  Committing the offence in order to earn fast money is, in whatever circumstances, not a valid mitigating factor.

15.  The defendant has pleaded guilty and is therefore entitled to one-third sentencing discount which is the most valid and the only valid mitigating factor in this case.

16.  In this case, therefore, the defendant is sentenced to 3 years and 1 month’s imprisonment for the charge.