HKSAR v. LAI KAM SAM

 DCCC1195/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1195 OF 2010

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Reasons for Sentence

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1.  Defendant, you pleaded guilty to one charge of possession of dangerous drugs, contrary to sections 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134, and one charge of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of that same ordinance. You denied one charge of possession of an ID card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177. That charge was ordered to be left on file and not to be proceeded without leave of this court and the Court of Appeal. In respect of the first two charges, you admitted the brief facts and I convicted you.

2.  Briefly, the facts were as follows. Dealing first with Charge 1. At around 3.50 am on 29 July 2010, police officers patrolling at Shun Tin Estate, Sau Mau Ping, saw a private car parked near the water pump room outside Tin Kei House and Tin Yiu House, Shun Tin Estate. You were in the driving seat with two passengers, one in the front and one in the rear. You were observed unfolding a $10 note. PW1, a police officer, approached the vehicle for enquiries. You immediately dropped the folded $10 note which contained traces of ketamine near to your seat. That is Exhibit 1. It fell onto a slipper, P2.

3.  PW1 revealed his police identity and he and colleagues searched you and the other two passengers. Nothing else suspicious was found and you were arrested for possession of dangerous drugs.

4.  Under caution, you denied the offence.

Charge 2

5.  PW2, another police officer, conducted a search of the vehicle at the scene. Inside the vent of the air-conditioner, he found the following:

(1)  A red plastic bag (E3) containing 4 resealable plastic bags of suspected ketamine (Exhibits 4 to 7);

(2) Electronic scales (E8); and

(3) One large plastic bag (E9) containing 105 small plastic bags (E10).

6.  Also a subsequent search at the police station by PW3, another police officer, found a notebook marked with suspected dangerous drugs transactions in the door compartment.

7.  You were arrested for a further offence of trafficking in dangerous drugs. Under caution, you denied that offence.

8.  In a subsequent interview under caution, you claimed the following:

(1)  All the dangerous drugs found in the vehicle belonged to you, it was ketamine for your own consumption;

(2) You yourself bought Exhibits 4 to 7 from a male Ah Ming at the staircase outside Msystem Café for $3,000;

(3) On return to the car, you opened the red plastic bag which is Exhibit 3 and found 4 plastic bags of ketamine, electronic scales and a number of small plastic bags;

(4) You put some ketamine in a banknote and placed it inside your front trousers pocket;

(5) You placed Exhibit 3 in the vent; and

(6) The notebook recorded your daily expenditure.

9.  Subsequent analysis showed the following:

(1) Exhibit 1 contained traces of ketamine;

(2) Exhibit 2 contained traces of ketamine;

(3) Exhibits 4 to 7 respectively contained 1.93 grammes of a powder containing 1.4(1.44?) grammes of ketamine, 13.6(13.67?) grammes of a powder containing 9.55 grammes of ketamine, 13.54 grammes of a powder containing 8.61 grammes of ketamine and 12.36 grammes of a powder containing 8.94 grammes of ketamine.

10.  The total amount of ketamine was therefore 29.8 grammes.

11.  At the time of your arrest, you had in your possession $1,486.50 and two mobile phones. The estimated street value of the ketamine was $4,897. You were trafficking in dangerous drugs.

12.  You admitted to 11 previous convictions on six occasions, two of which involved dangerous drugs. However, you had no previous convictions for trafficking.

13.  Mr Francis entered mitigation on your behalf. He confirmed the factual basis of the antecedent statement. That statement told me that you are 26 years of age, single, educated to Form 3 and had been employed as a transportation worker.

14.  Mr Francis informed me that at the time of the offence you earned approximately $10,000 a month. At that time you had been the sole breadwinner of the family as your mother had become unemployed and your father lived and worked in the mainland and offered nothing by way of contribution to the family finances. You found your income insufficient to support the family so you turned to selling dangerous drugs.

15.  Mr Francis also told me that at the time of the offence you were a drug addict and that approximately one-third of the ketamine was for self-consumption.

16.  You accepted that you had a poor criminal record and that the tariff applied in this case. Quite rightly pointed out that you had cleared the two passengers of the blame by your admissions made under caution.

17.  You produced a letter from your mother which I have read and taken into consideration.

18.  I turn now to the sentence.

(Discussion re total amount of ketamine involved)

19.  Then I do correct that to 28.54. It is not a great difference because we should be accurate and I am obliged to Mr Francis for that correction.

20.  I turn now to the sentence. The tariff range for this amount of ketamine, which is corrected to 28.54 grammes, is in the range of 4 to 6 years’ imprisonment.

21.  You are a young man with an undistinguished criminal record and there is little here by way of mitigation. However, in your favour is your plea of guilty. This is the first offence you have committed of trafficking, and I accept that you admitted your part and therefore removed any suspicion from the passengers, that is to your credit.

22.  I am also prepared to accept that part of the drugs would have been for self-consumption though the exact quantity is very difficult to estimate. I have also taken into account the letter that your mother wrote to me.

23.  On the 1st charge, I take a starting point of 6 months’ imprisonment, reduced to 4, you will go to prison for 4 months. On the 2nd charge, which is by far the more serious, I take a starting point of 54 months’ imprisonment, that is 4 years and 6 months, reduced by one-third for your plea of guilty to 36 months, 3 years.

24.  I take the view that the 1st charge is very much part of the 2nd charge, part of a course of conduct and that it is entirely proper and right that they should be served concurrently and not consecutively. Therefore, you will go to prison for a total of 3 years and that will be consecutive to the period of imprisonment you are serving at the moment. Understand?

DEFENDANT: (Answers in English) Yes, sir.