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HCCC 228/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 228 OF 2013
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HKSAR |
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NAM Ka Chai (A1) |
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LAU Kim Mo (A2) |
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| Before: |
Deputy High Court Judge Woo |
| Date: |
24 March 2014 at 11.33 am |
| Present: |
Mr Shaun Kelly, on fiat, for HKSAR |
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Mr Boey Chung, instructed by Benjamin Au & Billy Chan, assigned by Director of Legal Aid, for the 1st accused |
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Mr Kenny Chan Wing-kam, instructed by Yuen & Partners, assigned by Director of Legal Aid, for the 2nd accused |
| Offence: |
Trafficking in a dangerous drug(販運危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: The two defendants, Lam Ka‑chai and Lau Kim‑mo, have pleaded guilty to a single offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
The particulars of offence are that on 21 November 2012, at a flat known as Room 723, Nam Yat House, Nam Shan Estate, Sham Shui Po, Kowloon, in Hong Kong, the two defendants together with one Suen Man‑lam, unlawfully trafficking in a dangerous drug, namely 892.62 grammes of a powder which contained 703.54 grammes of ketamine.
The defendants have also admitted a Summary of Facts prepared by the prosecution.
At the material time, the 1st defendant, D1, lived with his stepfather and mother in the family home at Room 723, Nam Yat House, Nam Shan Estate, Sham Shui Po, in Kowloon. His stepfather worked in Shenzhen and lived part of the time in Shenzhen and part in Hong Kong.
On 5 September 2012, D1’s mother left Hong Kong for mainland China. On 13 November 2012 D1’s stepfather left for Shenzhen, leaving D1 alone in the family home. At about 0200 hours on 21 November 2012, D1’s parents returned home. D1 was not at home. The parents found seven black plastic bags on the sitting room table and they became suspicious. D1’s parents telephoned him and told him to return home.
Shortly afterwards, D1 returned. When questioned he said that his two friends had left the seven plastic bags there. His parents told him to telephone his friends. Eventually, one of his friends, that is the 2nd defendant, D2, came to the family home. D1 and D2 were questioned by the parents. The police were then called and D2 left before the police arrival.
After the police arrived at the family home, they found that the seven plastic bags contained numerous small plastic packets of ketamine. On the table they also found two electronic scales. On D1’2 bed, in plain sight, were two more transparent plastic packets of ketamine. D1 was arrested. Some days later, on 5 December 2012, D2 was arrested at his home in Shek Kip Mei Estate.
D1 and D2 were separately interviewed under caution. The interviews were video recorded. D1 stated, among other things, as follows: he has a habit of using ketamine given to him by his friends. In the afternoon of 20 November 2012, his friend, Suen, telephoned him. Suen said that he would go to D1’s home to do something. He understood that Suen was talking about ketamine.
Suen went to D1’s home with ketamine. D2 arrived about half an hour after Suen. D2 and Suen packaged the ketamine into small packets and weighed them. Each small packet was valued at about HK$1,000. D1 assisted them in packaging the ketamine in that he handed out small plastic bags to them when they ran out of bags. Throughout, only himself, that is D1, D2 and Suen were present.
Afterwards, the three of them rested, watched TV and played computer games before going out for a night snack.
D2 was interviewed and he stated, among other things, that on 20 November 2012, Suen telephoned him and asked him to go to D1’s home to package ketamine. D2 would be paid a few hundred dollars. When D2 arrived, he found Suen and D1 already packaging the ketamine. D2 joined them. Each package weighed 13 to 14 grammes. Afterwards, they watched television and then left to get food. Suen is still at large.
The total amount of ketamine was found by Government Chemist to be 892.62 grammes of a powder which contained 703.54 grammes of ketamine. Out of this amount, the two packets found on the bed contained in total 26.65 grammes of a powder which contained 21.12 grammes of ketamine. The total quantity of ketamine was contained in 142 plastic bags.
An expert in the value of the drugs calculated that the quantity of the ketamine involved could have been sold to abusers at street level in November 2012 for HK$106,221.
The defendants, by their admissions and their pleas of guilty, admit trafficking in the amount of ketamine specified in the indictment.
According to the sentencing guidelines for ketamine, in Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323, for trafficking in 600 to 1,000 grammes of ketamine, the sentence should be 12 to 14 years’ imprisonment and for over 1,000 grammes of ketamine the sentence should be 14 years’ imprisonment upwards.
D1, his family members, including his parents, his stepfather and his grandfather and his former teacher have written moving letters to the court to ask for leniency for him. That includes his natural father. Similarly, D2 and his mother have done the same. I have no doubt that the defendants are remorseful for what they have done.
Their having to face a long term of imprisonment has caused great concern and distress to their families. However, drug trafficking is a very serious offence and sentencing is almost wholly dependent on established guidelines and authorities. Save in rare circumstances, personal situation matters little and very little discretion is left to the sentencer.
D2 has a criminal record but not related to drugs. Thus, I do not take it into account to increase sentence. On the other hand, D1 had a clear record and I am taking that into account in passing sentence on him.
At the time of the offences the defendants were both young men, D1 being 18 years of age and D2 being 20 years of age. Because of their youth they might have failed to fully appreciate the seriousness of the offence.
Although this cannot be used as an excuse, I am prepared to adopt a lower starting point for them, which is 12 years’ imprisonment. Each of the defendants is entitled to a one-third discount for his guilty plea which reduces his starting point to 8 years and that is the sentence that I impose on D2.
Regarding D1, I give him a further 3 months’ reduction to reflect his clear record, his young age and his family situation. Thus, D1’s sentence is 7 years and 9 months’ imprisonment.
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