HKSAR v. LEE KIT TSUN

DCCC 780/2023

[2024] HKDC 1064

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 780 OF 2023

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REASONS FOR SENTENCE

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1.  The Defendant has pleaded guilty to one count of trafficking in a dangerous drug today.

Facts

2.  The facts of this case is simple and straightforward. According to the Summary of Facts which has been agreed by the defendant before he was convicted, he was found sitting at the driver’s seat of a car. Upon search of the car, one re-sealable plastic bag containing 41 re-sealable plastic bags containing 40.6 grammes of a solid containing 28.9 grammes of ketamine was found. The estimated market value of the ketamine is about HK$15,000.

Personal and family background

3.  The defendant is now 37 years old, single and resides with his parents. He has 2 children with his ex-wife. At the material time, he was a construction site foreman earning HK$45,000 per month.

Criminal Record

4.  In relation to the defendant’s criminal conviction record, he appeared in court for 9 times involving a total of 11 charges. Still, he had only 1 conviction record relating to simple possession of a dangerous drug and that was almost 15 years ago.

Mitigation

5.  The Court of Appeal has set down guidelines for trafficking in ketamine. Mr Chan, Counsel for the Defendant, referred me to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. According to that case, the sentence for trafficking in ketamine between 10 to 50 grammes is between 4 to 6 years’ imprisonment. Mr Chan, by using a pure arithmetic calculation, submits that the starting point for trafficking in 28.9 grammes of ketamine is 4 years 11 months’ imprisonment.

6.  Mr Chan also submits that the defendant is genuinely remorse for committing the offence and has been taking steps to become a contributing member of the society after he was remanded in custody. He enrolled in an online and distance learning programme offered by the School of Continuing and Professional Studies of the Chinese University of Hong Kong. He also registered in the Centralised Organ Donation Register.

7.  Besides, Mr Chan cited HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 in his written mitigation. In that case, the Court of Appeal stated that a discount of between 10 to 25% can be applied to the starting point in situations when all or part of the dangerous drugs trafficked was for the defendant’s self-consumption. In his written mitigation, Mr Chan wrote “all of the drugs being trafficked was intend for self-use”. I cannot accept Mr Chan’s submission, otherwise, the defendant shall not plead guilty. Upon confirmation that the defendant will withdraw that “mitigation”, plea was taken. During his oral mitigation, Mr Chan once submits that a substantial part of the dangerous drugs found was for the defendant’s own use but ultimately confirms that he will not proceed any further on this ground of mitigation. In fact, there is no evidence before me that any part of the ketamine found was for the defendant’s own consumption.

Sentence

8.  Taking all the circumstances into account, particularly the quantity involved, I adopt 4 years 9 months’ imprisonment as the starting point. The most important mitigation factor must be the guilty plea of the defendant and a one-third discount shall be given. Apart from the guilty plea, there is no other mitigating factor that could justify for a further reduction in sentence. The sentence, therefore, is 3 years and 2 months’ imprisonment.