HKSAR v. LAI KWOK TUNG

DCCC1094/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1094 OF 2010

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Reasons for Sentence

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1.  The defendant was convicted upon his guilty pleas of two charges of trafficking in a dangerous drug. In sentencing I take into account the whole circumstances of the case including its nature and facts, in particular the nature and quantity of the dangerous drug concerned, background of the defendant and mitigation put forward on his behalf by the learned defence counsel.

2.  The facts of the case are simple.  The defendant was stopped by police officers on the street when he was seen coming out from a building acting furtively.  Upon search, two transparent plastic bags were found in the right front pocket of his trousers.  The bags contained powder later confirmed to be powder containing 4.23 grammes of ketamine.  Under caution the defendant admitted that the powder in the two bags was ketamine and he intended to sell the same to others at the amusement game centre to earn money.  Later in his residence, one transparent plastic box containing nine transparent plastic bags containing what later confirmed to be 85.24 grammes of ketamine was found.  Other things found included one mini electronic scale, one mobile phone, some empty transparent plastic bags and three notepads.

3.  Under caution the defendant admitted that all the powder in the abovesaid plastic bags was ketamine, part of which was for his own consumption and part of which was intended for selling to others.  In a subsequent interview, the defendant further admitted that he had bought the ketamine at $10,000 a few days ago and the total weight of substance he had purchased was about 250 grammes.  When he was arrested, he was going to deliver ketamine to a customer.  The customer had asked for ketamine at $300.  The mobile phone was used for his drug business.  The notepads were used for recording the transactions for selling ketamine.  The empty plastic bags were used for packing ketamine.  Out of the $1,920 seized on him, $920 were proceeds of his selling ketamine on the day prior to his arrest.

4.  The defendant is 21 years of age, he is single. He had received education up to Form 4.  He had worked as a decoration worker but at the time of the offence he was unemployed.  His parents divorced when he was 13 years of age.  In the letter his mother wrote she said she had to work long hours to make a living and as a result she did not supervise the defendant well.  She asked for leniency.  Defendant admitted he was drug‑dependant.  He started to consume drugs three years ago.  He had to take ketamine three to four times a day. 

5.  Defence counsel told the court that several days before the arrest, the defendant met a man in an amusement games centre and was invited to sell ketamine.  The man agreed that he could settle the price of $10,000 a month later.  In the circumstances the defendant obtained 250 grammes of powder containing ketamine.  He was lured to do so out of greed, he wanted to earn some quick money.  He could also consume ketamine without payment.  He was only required to pay in a month after having sold at least part of the stock.  Defence counsel stressed that the defendant is now remorseful.  He committed the offence out of single-mindedness and is now determined to turn over a new leaf.

6.  It is sad to see once again a young person being manipulated and exploited to engage in this very serious offence.  Despite his young age the defendant is not a first-time offender.  In October 2007 a Probation Order was imposed on him because of an offence of theft.  Apparently the order had little positive impact on his rehabilitation.  In September 2010 he was sentenced to 4 months’ imprisonment for a copyright offence.  He is still serving the sentence and is expected to be released in slightly more than two weeks time. 

7.  The dangerous drug the defendant trafficked in was ketamine.  The narcotic content of the dangerous drug found on him was 4.23 grammes of ketamine and that found in his residence was 85.24 grammes of ketamine.  In the case of SJ v Hii Siew Cheng, CAAR 7 of 2006, the Court of Appeal indicated a tariff for sentencing for traffickers in such dangerous drug.  If the quantity of ketamine trafficked is 1 to 10 grammes the sentence to be considered is 2 to 4 years’ imprisonment.  If the quantity is 50 to 300 grammes, the sentence to be considered is 6 to 9 years. 

8.  In all the circumstances I am of the view that an imprisonment term is warranted in the present case.  Despite the defendant is only 21 years of age, the court has consistently held that for the offence of trafficking in dangerous drugs unless it is a case of extreme youth, youth generally is not a reason to reduce a sentence.  Deterrence is an important factor in sentencing for this nature of offence.  If any precedents are required I will cite R v Lau Tak Ming [1990] 2 HKLR 370, AG v Suen Yuen Ming [1989] 2 HKLR 403 and R v Yiu Kwong Shui, CACC377/1995. 

9.  The defendant is not a person of extreme youth. Besides, not only that he is not a first-time offender, since commission of the first offence he went on to commit more serious offences. 

10.  The court was informed that the defendant is drug-dependant but I do not consider it necessary to consider sending him to DATC for treatment.  In the light of the length of imprisonment term I am going to impose there is sufficient facility in the prison to assist the defendant to get rid of the drug habit.

11.  The defendant claimed that some of the ketamine found was for his own consumption.  Defence counsel was not able to state what proportion of ketamine the defendant intended to keep for that purpose.  In all the circumstances, I am satisfied that the primary purpose of possession of such quantity of ketamine was trafficking and most of the quantity in possession must be for that purpose. 

12.  In this regard I have considered cases such as HKSAR v Wong Suet Hau, CACC366/2000 and HKSAR v Chong Chee Meng CACC315/2008.  I will take into account that a certain proportion of the ketamine was to be kept for the defendant’s own consumption but the proportion would be low.  He was obviously in the business of trafficking.  In any case, the latent risk factor must not be ignored and in my judgment the risk was high in this case.  Having considered the whole circumstances including mitigation, I do not consider there exists sufficient reasons not to follow the tariff though a slightly lower starting point will be adopted to take into account the self-consumption factor. 

13.  In the case of Lau Tak Ming the Court of Appeal said that within the suggested bands the court should take into account the following factors: the profit which may reasonably be expected; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender and his previous history of narcotics offences. Notwithstanding the record of the defendant, this is the first time he was convicted of the offence of trafficking in a dangerous drug.  In all the circumstances, taking the assertion of self-consumption into account, I consider the following starting points appropriate:-

Charge 1, 2 years.

Charge 2, 6 years.

14.  The defendant pleaded guilty and is entitled to a one‑third discount.  Having considered the whole circumstances and mitigation submission, I am of the view that this is the extent of discount the defendant is entitled to in this case.

15.  Based on the matters aforesaid, I sentence the defendant to 16 months’ imprisonment for charge 1 and 4 years’ imprisonment for charge 2.  Taking into account totality, I order that the two sentences to run concurrently.  The defendant is to serve a total sentence of 4 years’ imprisonment for this case.

16.  The sentence the defendant is serving at present is of a completely different nature.  Having considered totality, I order the sentences imposed in this case to run wholly consecutively to the present sentence the defendant is serving.