HKSAR v. LEE FOK TING

DCCC 1223/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1223 OF 2008

----------------------

----------------------

------------------------------

Reasons for Sentence

------------------------------

1.  The defendant pleads guilty to 2 charges of trafficking, the first charge relates to 28.82 grammes of ketamine while the 2^nd charge relates to 22.15 grammes of the same drug.

2.  The defendant lives with his mother at cubicle 1029 of Hoi Yu House at Hoi Fu court, No. 2 Hoi Ting Road in Mongkok of Kowloon. At about 10.40pm on the evening of 22 October 2008 (a Wednesday) the defendant’s mother was returning to the flat. She was stopped by the police outside the flat for enquiry. The defendant’s mother allowed the police officers into the flat for further investigation.

3.  Whilst the officers were inside the flat, the defendant returned. The police officers searched the defendant and found 11 resealable plastic bags containing drugs inside the left rear trousers’ pocket of the defendant. Another 3 plastic bags of drugs were found insider a box in the defendant’s bedroom. In the same box, beside the 3 bags of drugs, were 21 small resealable plastic bags and an electronic scale.

4.  Government chemist confirmed the contents of the 3 bags of drugs were:-

i)    of the 11 bags found inside the defendant’s trousers pocket, 10 of the bags contained 26.8 grammes of a powder which contained 22.99 grammes of ketamine. The remaining bag contained 26.97 grammes of a powder which contained 5.83 grammes of ketamine; and

(ii)  of the 3 resealable plastic bag found inside the box in the defendant’s bedroom, the 3 bags contained 78.5 grammes of a powder which contained 22.15 grammes of ketamine.

5.  The total quantity of ketamine the defendant had was 50.97 (22.99 g + 5.83 g + 22.15 g) grammes.

6.  The defendant, aged 24, is married. His wife lives in the mainland.  He used to work as a causal worker earning about HK$6000 a month. According to defence counsel, the defendant has started his drug consumption about 5 to 6 years ago.  It was his drug consumption which led him into his trafficking activities. The defendant told the police officers in his antecedent statement that his daily consumption was about 2 grammes of ketamine per day.  Both his counsel and his mother have urged for the court’s leniency on account of the defendant’s remorse.

7.  Sentence tariff was revised in June last year since the Court of Appeal decision of Hii Siew Cheng [2009] 1 HKLRD 1. When a defendant engaged in the trafficking of 10-50 grammes of ketaime, the starting point for sentence is a term of 4 to 6 years of imprisonment whilst the trafficking of 50 to 300 grammes of ketamine attracts a term of 6 to 9 years imprisonment.

8.  If the defendant were to be sentenced on the 2 charges for the respective quantity of drugs he had in his possession for trafficking, he would likely be facing terms of 4 years and 11 months for the first charge and another 4 years and 7 months for the 2^nd charge after trial. 

9.  The defendant frankly admits only a small portion of the drug was for his own consumption.

10.  Giving the defendant credit for his frankness, and his plea indicating his remorse, I accord him a 1/3 reduction.  Should I adopt an individualistic approach, I would likely have lowered the starting point for both charges to that of 4 ½ years for each of the 2 charges. The 1/3 discount would bring his term down to 3 years imprisonment for each of the 2 charges.

11.  Should I order the 2 terms to be served consecutively for both charges, the defendant would have to face a custodial term of 6 years.

12.  Mr. Omar has urged this court to accept the 2 quantities of drugs to be a collective bulk for sentence as the defendant was found in possession of both of them at the same time. In support of his motion Mr. Omar puts forward the Court of Appeal decisions of Chow Yu Chi CACC-359/2000 and Tsang Hin Chung CACC-113/2004 for reference. Though the two quantities of drugs were found in different places, namely the first quantity of drugs was found on the defendant’s trousers pocket while the 2^nd quantity was found at his home, I accept Mr. Omar’s submission to be an equitable approach. 

13.  When the sentence is assessed on a global approach, the term the defendant should be facing for possession 50.97 grammes of ketamine would roughly be a term of 6 years after trial. With the readjustment for personal consumption I am prepared to adopt the starting point of 5 years and 9 months.

14.  Hence the sentence I do impose is as follows:-

(i)  charge 1 – a term of 3 years imprisonment; and

(ii) charge 2 – a term of 3 years imprisonment of which 2 years and 2 months to be served concurrently with the 1^st charge, leaving the balance of 10 months to be served consecutively.

15.  The total duration is that of 3 years and 10 months for the two charges, which represented 2/3 of a 5 years and 9 months term.