HKSAR v. LEE CHUN LAM (also known as LEE KI HONG, JACKY)

HCCC 187/2023

[2024] HKCFI 1524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 187 OF 2023

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty in the Magistrates’ Court to two charges.  He pleaded guilty to one count of trafficking in a dangerous drug, namely, unlawfully trafficked in 54.6 grammes of a solid containing 32 grammes of ketamine, (Charge 1).  He also pleaded guilty to another charge of manufacturing a dangerous drug which is ketamine, (Charge 2).  He was committed for sentence and today he confirmed his plea and agreement to the Summary of Facts. 

Facts

2.  As to the facts, I will adopt the Summary of Facts which the defendant had admitted as follows:

“At around 11:40 p.m. on 1 August 2021, when SPC 34772 ("PW1")  was conducting an anti-narcotic operation with his teammates on 4^th Floor, Choi Yan House, Choi Tak Estate, Ngau Tau Kok, Kowloon, he saw the Defendant appearing at the lift lobby with his left hand inserted in his trouser pocket and looking around furtively. As the Defendant walked swiftly towards the direction of the flats, PW 1 intercepted him.

Charge 1

2. Upon search, two plastic bags containing a total of 54.6 grammes of a solid containing 32.0 grammes of ketamine ("K1 ")  were found in the left trouser pocket of the Defendant, while two keys ("the Keys")  were found in the right trouser pocket.

Charge 2

3. The Defendant confirmed that he lived in Room 411, 4^th Floor, Choi Yan House, Choi Tak Estate, Ngau Tau Kok, Kowloon ("the Flat"). Using one of the Keys, PW 1 and the other police officers gained entry to the Flat.

4. Upon search, the following items were found in the bedroom inside the Flat:

(a)  One paper bag containing one plastic bag containing 410 grammes of a solid which did not contain any substances controlled under the Dangerous Drugs Ordinance ("S1")  underneath a desk;

(b)  One paper box containing one plastic bag containing 61.9 grammes of a solid containing 32.8 grammes of ketamine ("K2")  on the desk; and

(c)  A number of plastic bags ("the Plastic Bags")  and one electronic scale ("the Scale")  on a table beside the bed.

5. Upon search, cash in the sum ofHK$2,000 and 3 mobile phones were found on the Defendant.

Arrest and Caution

6. The Defendant was arrested for trafficking in a dangerous drug.

7. Under caution at the scene, the Defendant said that:

(a)  K1 were two packets of "K Jai" which he sold to others to earn a living;

(b)  Sl was a packet of powder which he mixed into the "K Jai" to increase its volume;

(c)  K2 was another packet of powder which he mixed into the "K Jai" for sale to others.

8. In the video-recorded interview, the Defendant said under caution that:

(a)  The Defendant met a male nicknamed "Ah Ming" offering him a way to make quick money and then giving him two packets of "K Jai" and two packets of artificial flavouring, together with some plastic bags and an electrcnic scale. Ah Ming then paid the Defendant HK$2,000.

(b)  Ah Ming would call the Defendant for the "K Jai". Depending on the amount of' "K Jai" requested, the Defendant would add artificial flavouring into the plastic bags and weigh them.

(c)  On the night of 1 August 2021, Ah Ming asked the Defendant to deliver two packets of "K Jai" to a food stall in Wong Tai Sin. Upon arrival at the food stall, the Defendant did not see Ah Ming so he went back to the Flat.

(d)  Kl was two packets of "K Jai" given to the Defendant by Ah Ming.

(e)  S1 and K2 were two packets of artificial flavouring given to the Defendant by Ah Ming, for mixing with the "K Jai".

(f)  The Plastic Bags were given to the Defendant by Ah Ming to pack the "K Jai" and artificial flavouring.

(g)  The Scale was given to the Defendant by Ah Ming to weigh the "K Jai".

(h)  "K Jai" meant ketamine.

(i)  The HK$2,000 seized from the Defendant was the reward given by Ah Ming.

9. The Defendant now admits and accepts that at all material times:

(a)  He knowingly possessed Kl for the purpose of unlawful trafficking;

(b)  He manufactured a dangerous drug, namely ketamine, using Sl and K2”

Defendant’s Background and Mitigation

3.  Defendant is 29 years old and single.  He was just 26 years old at the time of the offence.  Defendant had received education up to Form 2.  Before arrest, he was doing odd jobs in a construction site, earning $16,000 per month. 

4.  In the past, he had altogether 3 criminal records involving common assault, theft and trafficking in a dangerous drugs, which is his last record.  In 2013, he was sentenced in the High Court to 8 years and 6 months and he was last discharged from prison in 2017. 

5.  In mitigation, Mr Hui, counsel for the defendant, pointed out that it was the first time the defendant was doing the task of manufacturing drugs and was arrested before anything was done.  The drugs and plastic bags were found in the defendant’s bedroom and the whole setting was not a sophisticated one.  Mr Hui contended that should the drugs involved in Count 2 was for the purpose of trafficking, the mathematic calculation of an appropriate starting point should be around 5.14 years.  Enhancement should be made as defendant was charged in Charge 2 with manufacturing a dangerous drug. 

6.  Mr. Hui therefore submitted that a starting point of around 7.5 years would already be sufficient to reflect the seriousness and the criminality of the present offence.  He also urged the court to consider the sentences for both counts to run concurrently. 

7.  This morning, Mr Hui also submitted a letter written by the defendant stating that the defendant is fully remorseful.  I have read the letter very carefully.  The defendant explained that at the time of the offence, he was trying to look after his girlfriend who came back after separation, as he did not have sufficient financial resources, therefore he foolishly chosen a wrong path of trafficking in order to earn quick money. 

8.  Defendant felt extremely remorseful and he had promised the court not to reoffend in the future.  He wanted to reunite with his mother and his younger brother who has now immigrated to Canada.  Therefore, he would equip himself whilst in prison and becomes a useful person after he was discharged.  He told the court that even if he were not be able to immigrate because of his criminal records, he will also try his best to be a law-abiding citizen. 

Sentencing consideration

9.  I have considered the approach to the sentencing of the trafficking in dangerous drugs as laid down in the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and I have considered the six-step sentencing approach as set out in the case. 

10.  In this case, in Charge 1, the defendant was first caught red handed outside his premises after he tried to deliver the two packets of ketamine to someone in Wong Tai Sin, Kowloon. 

11.  In Charge 2, the defendant manufactured the dangerous drugs by adding some powder to the ketamine to increase its volume and also by adding artificial flavouring into the ketamine. 

12.  In Charge 1, the first step of the six steps is to assess the gravity of the offence and identify the relevant guidelines which are applicable to the quantity of drugs concerned.  In respect of ketamine, the relevant authority is Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. 

13.  If I consider the quantity of ketamine in Charge 1 alone, that is, 32 grammes of ketamine, the relevant sentencing band for this quantity is 4 to 6 years’ imprisonment for 10 to 50 grammes of ketamine.  That would be a starting point of 5 years’ imprisonment. 

14.  The third step is to identify where the relevant band this defendant comes.  The starting point is identified by reference to the quantity of the dangerous drugs as well as the role and the culpability of the defendant. 

15.  In Charge 1, I still consider that the role of the defendant in this count is merely a courier. 

16.  The fourth step is to see if there is any other further aggravating factors present and I consider that there is no such aggravating factor. 

17.  The fifth step is to consider all the mitigating factors when assessing the overall discount.  In this case, apart from the usual one-third discount on account of the defendant’s plea of guilty, I can see no further reason to further reduce the sentence.  Therefore, in Charge 1, after the one third discount, the sentence is reduced from 60 months to 40 months’ imprisonment. 

18.  Turning to Charge 2.  Now there is no specified quantity in this charge.  In sentencing, I would take into account the amount of ketamine both in Charges 1 and 2.  As said, that is a total of 64.8 grammes. 

19.  The relevant case in sentencing for manufacturing dangerous drugs is that of R v Cheung Wai Kwong and Another [1997] HKLRD 344.  In manufacturing cases, the quantity of drugs seized is not the sole consideration in determining a starting point, although it does give an idea of the scale of the operation. 

20.  Other factors would include capacity of equipment found, the output of the drugs at the manufacturing premises as well as the role played by the defendant. 

21.  In mitigation, Mr Hui also referred me to another case, HKSAR v Cheng Chi Wai, CACC 50/2019.  In that case, the factors relevant to sentencing a manufacturing charge is explored.  The Court of Appeal particularly cited the case of R v Wong Chun Ping and Others [1984] HKLR 247 and reiterated that the starting point for drug manufacturing was an offence which should not be less than 10 years’ imprisonment, unless the act of drug manufacturing was just nominal, for instance, one of mixing and diluting of small quantities of drugs without involving any sophisticated paraphernalia or a large amount of chemicals as raw materials. 

22.  Mr Hui submitted in his mitigation that the whole manufacturing set up in this case was not sophisticated at all and that the defendant was doing the task for the first time.  He submitted that a starting point of 7.5 years would be sufficient to reflect the seriousness and the criminality of the present case. 

23.  He also referred to a case, HKSAR v Ki Chun Pong, CACC 73/2018, where the court enhanced the starting point for the amount of the drugs found in the premises by a year only for the manufacturing charge and it was confirmed in the appeal. 

24.  If the two charges are both trafficking charges, the total quantity of ketamine is 64.8 grammes.  Applying the tariff, the overall sentence would only be 6 years and 2 months. 

25.  I agree with the submission that since the manufacturing of dangerous drugs in this case involves no more than the mixing of a powder in the ketamine, I think an overall sentence of 7.5 years’ imprisonment which means an additional 1 year and 4 months’ imprisonment is already sufficient enough to reflect the added criminality of manufacturing.  In Charge 2, after the one-third discount, the sentence is reduced from 7.5 years’ to 5 years’ imprisonment. 

26.  In the end, I must consider the principle of totality and this is where the sixth step in the sentencing authority is relevant. 

27.  Any sentencing court must at this stage also stand back and observe the overall sentence to ensure that it is fair, balanced and just to the defendant and also to the seriousness of these offences. 

28.  I order that in the end that the sentences of both counts to run concurrently and in my view, the overall sentence of 5 years’ or 60 months’ imprisonment is not excessive at all and it is fair to the defendant. 

29.  In Charge 1, I shall impose a sentence of 40 months’ imprisonment.  In Charge 2, I shall impose an imprisonment of 60 months’ imprisonment.  Both charges to run concurrently.