HKSAR v. LAM YIN HANG

DCCC1257/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1257 OF 2009

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Reasons for Sentence

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1.  The defendant faces one charge of trafficking in a dangerous drug contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. It is alleged that he on 19^th September 2009, at the junction of Fat Tseung Street and Cheung Sha Wan Road, Cheung Sha Wan, Kowloon, unlawfully trafficked in a dangerous drug, namely 191.65 grammes of a powder containing 33.7 grammes of Ketamine.

2.  The defendant pleaded guilty, admitted to the admitted facts and was duly convicted.

Summary of admitted facts

3.  Slightly unconventionally, the facts upon which the defendant pleaded guilty to were admitted by way of s.65C of the Criminal Procedure Ordinance, Cap. 221. Nevertheless, contents were read out and the defendant confirmed his admission. A brief summary is as follows.

4.  At 5:57pm on the charge date, plainclothes police officers PW1 and PW2 were conducting an anti-dangerous drugs operation in Cheung Sha Wan when they spotted the defendant at the junction of Fat Tseung Street and Cheung Sha Wan Road, holding a rolled-up comic magazine tight in his hand, looking around furtively. PW1 and PW2 intercepted the defendant and PW1 conducted a search on him. 2 packets of powder substance were found tucked inside the rolled-up comic magazine. The defendant was arrested and cautioned. Under caution, the defendant admitted that the powder substance was ‘K chai’ and claimed that it was bought by him for his own consumption.

5.  The powder substance were seized and later certified by the Government Chemist to contain the narcotic contents as particularized in the charge.

6.  At paragraph 7 of the admitted facts, the prosecution referred to the contents of an expert report prepared by a consultant psychiatrist of Castle Peak Hospital, stating that patients of Tuen Mun Substance Abuse Clinic reported that they usually sniffed half to one packet of Ketamine on each occasion of use. Each packet usually weighed around 0.2 gramme with common adulterants of paracetamol and caffeine. A few cases reported that occasionally up to 6 grammes a day may be used.

Previous

7.  The defendant has 5 previous convictions, all for possession of dangerous drugs.

Mitigation

8.  The defendant is 25 and a habitual drug user since 1998. He began abusing Ketamine in 2000. The defendant’s parents divorced when he was 3 and he was taken care of by his grandparents. The defendant is single with 1 elder brother and 2 sisters. The defendant was educated up to F.2. Before his arrest, he worked as a delivery worker earning $200 a day. It is submitted in mitigation that the larger bag found on the defendant at the time of arrest were drugs for his own consumption, which would have lasted about 1 month. The defendant bought the drugs found on him for $7,000 and he was preparing to go back to Cheung Chau where he lived from Cheung Sha Wan. Although the defendant has previous convictions, none were for trafficking in dangerous drugs. A letter written by the defendant was submitted in mitigation.

Sentencing tariff

9.  The case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006 applies and the indicated tariff for 10 to 50 grammes of Ketamine is 4 to 6 years’ imprisonment.

10.  In the case of HKSAR v Mok Cho Tik, [2001] 1 HKC 261 in relation to simple possession, the Court of Appeal has this to say,

“17. Sentencing is an art, and we emphasize that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case. We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be. The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”

Sentence

11.  Applying the tariff in Hii Siew Cheng, the proper starting point for the full quantity of 33.7g of Ketamine would be that of 63 months’ imprisonment. There are no further mitigating factor to justify a further reduction other than the one third discount given for the defendant’s guilty plea. On that basis, the defendant would have faced a sentence of 42 months’ imprisonment.

12.  However, I find that having taken into consideration the circumstances of the defendant, including his previous convictions and his visits to the DATC, he is a drug addict and that there is ground to find that some of the dangerous drugs found in his possession was for his own consumption. I have referred to the case of HKSAR v Wong Suet Hau and the factors that Court of Appeal considered pertinent when the issue of drugs for own consumption is raised in mitigation for a charge of trafficking in the same drugs.

13.  It is the defendant’s assertion through counsel that he paid $7,000 for the drugs. It is however expert evidence that the street price would have been $22,998. If that is the case, then 30.4% of the drugs found on the defendant was for his own consumption, which would be around 10.25g. If that is correct, then the defendant would be trafficking in 23.45g of the Ketamine.

14.  On the basis of 23.45g, applying the guideline in Hii Siew Cheng, a proper starting point would be that of 56 months’ imprisonment. Bearing in mind that simple possession also carried a sentence, with 10.25g, given the conviction history of the defendant, a sentence of 12 months would be appropriate. The total starting point would then be that of 68 months’ imprisonment. Which is even more than the starting point had all the dangerous drugs been for trafficking.

15.  On the other hand, let’s say we accept that the bigger bag was to be for the defendant’s own consumption. If we take the basis that only 11.68g was trafficked, then a starting point of 49 months would be appropriate. For the simple possession of the 22.02g of Ketamine, given the conviction history and large quantity involved, a starting point of 14 months’ imprisonment would be appropriate, that would lead to a total starting point of 63 months’ imprisonment, which is exactly the same starting point as if the dangerous drugs were all for trafficking purpose.

16.  This is perhaps what the Court of Appeal had anticipated in Wong Suet Hau when they said at paragraph 34, “An application of considerations (i) and (ii) may well offset much of the practical value of the mitigation…” It must be noted that I had not taken into consideration the latent risk factor when dealing with the possession part of the drugs.

17.  Nevertheless, as required by Wong Suet Hau and since there is some factual basis to support the claim that the defendant is a drug user, I have taken that mitigating factor into consideration and I will adopt the last approach, i.e., that the bigger bag was for his own consumption. I adopt an overall starting point of 63 months’ imprisonment, reducing it by one third to that of 42 months’ imprisonment upon the defendant’s plea of guilty. I see no other mitigating factors to further reduce this sentence. The defendant is sentenced to 42 months’ imprisonment.