HKSAR v. LO KIN WAI

 DCCC498/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 498 OF 2010

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Reasons for Sentence

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1.  About two weeks ago, the defendant pleaded guilty to two charges of trafficking in dangerous drugs.

2.  The facts can be summarised as follows.

Charge 1

3.  On the afternoon of 11 March 2010, the defendant was found acting furtively at Tsui Ping Estate in Kwun Tong. Upon a body search, the following drugs were found on him:

(1)  two plastic bags containing a total of 0.31 grammes of a crystalline solid containing 0.30 grammes of methamphetamine hydrochloride;

(2)  a plastic bag containing 1.26 grammes of a powder containing 1.06 grammes of ketamine;

(3)  plastic bag containing 0.11 grammes of a crystalline solid containing 0.11 grammes of methamphetamine hydrochloride;

(4)  one foilpack containing one tablet containing 7 milligrams of nimetazepam.

4.  Under caution, the defendant claimed that the drugs were for his own consumption. During a subsequent interview, he said he bought the drugs earlier on the same day from an unknown male in Kwun Tong.

Charge 2

5.  Eight days later, at about midnight of 19 March 2010, the defendant was spotted acting furtively near the public toilet at Tai Wo Hau MTR Exit B. He was intercepted and searched. Four plastic bags containing a total of 54.22 grammes of a powder containing 45.64 grammes of ketamine were found inside his trousers pocket. Under caution, the defendant said the packets were K Chai. He met an unknown male at about 11 pm on 18 March 2010 in Sham Shui Po. The man asked him to bring the K Chai to Tai Wo Hau for a reward of $300. The defendant did it because he was in need of money.

6.  The defendant is aged 25, single. He has 12 previous convictions,4 related to dangerous drugs, including one for trafficking in dangerous drugs in 2001.

7.  In mitigation, his solicitor, Mr Li, told the court that the defendant committed the first offence because of a recent break-up with his girlfriend. Mr Li also told the court that the defendant had a history of mental illness and suicidal tendency. He was receiving treatment in Siu Lam Psychiatric Centre. At his request, I called for a psychiatrist’s report to consider the defendant’s present mental condition. The report is now ready. Today, Mr Li made no further submissions on the psychiatrist’s report.

8.  The psychiatrist’s report prepared by Dr Choi Wing-kit reveals a brief mental history of the defendant with psychotic symptoms related to his chronic stimulant abuse since 2003 when he was serving an imprisonment term. Since then, he was repeatedly sent to Siu Lam Psychiatric Centre whenever he was imprisoned. However, the defendant was not impressed to be reliable when he reported his symptoms. He did not appear to be in particular distress when he reported mental abnormalities to doctors.

9.  Moreover, the reports say, repeated mental state examinations found him calm and attentive, with no abnormal gestures observed. His mood was normal and he spoke coherently and relevantly.

Dr Choi further remarked that, “There was no psychotic symptoms or cognitive deficit elicited.”

Reasons for Sentence

10.  Trafficking in dangerous drug is a very serious offence. For “Ice” and ketamine, the Court of Appeal has set down guidelines in Ching Kwok Hung and Hii Siew Cheng. Charge 1 relates to a mixture of “Ice,” ketamine and nimetazepam. The most serious drug is the “Ice” in the total quantity of 0.41 grammes. According to Ching Kwok Hung, for trafficking of “Ice” up to 10 grammes, the imprisonment band is 3 to 7 years’ imprisonment. I will use 3 years’ imprisonment as the starting point for the “Ice.”

11.  The relatively small quantity of ketamine and the small quantity of nimetazepam will be disregarded for the purpose of sentencing.

12.  Charge 2 relates to 45.64 grammes of ketamine which is a substantial quantity. According to the guidelines in Hii Siew Cheng, for quantity from 10 to 50 grammes, the imprisonment band is 4 to 6 years’ imprisonment. Following this guideline, I take 5 years and 9 months as starting point.

13.  I cannot see any circumstances of the defendant which can justify a reduction of sentence. The defendant claims he is suffering from mental illness. However, the psychiatrist’s report provides no information to justify a reduction of the sentence. It can be seen from Dr Choi’s report that every time when the defendant was imprisoned, he reported psychotic symptoms and, hence, sent to the Siu Lam Psychiatric Centre. However, he did not impress the doctors to be a reliable patient. Even if the defendant’s claimed psychotic symptoms are genuine and he is in need of psychiatric treatment, his circumstances do not justify a reduction of sentence. There is no evidence nor suggestion that the defendant did not know what he was doing at the time of the offences or his faculty was affected by any mental illness.

14.  Not every defendant who has a history of mental illness is entitled to a reduction of sentence. The defendant in this case is not suffering from mental retardation. Accepting his psychotic illness as genuine, there is no evidence that he was under influence of psychotic illness at the time of the offences. It is evident that back in 2001, he committed trafficking in dangerous drug while his first reported psychotic symptoms appeared in 2003. I do not accept that his mental illness played any part in the commission of the offences as a “reflection of diminished criminality or culpability” stated in HKSAR v Chiu Peng, Richard CACC287/2001. If the defendant is now in need of psychiatric treatment, he can receive the treatment in gaol.

15.  The only mitigating factor in this case is the defendant’s plea of guilty, for which he will get a one-third reduction.

16.  The last thing is: what is the appropriate overall sentence for the two charges? The two offences were committed on two different occasions. The second offence was committed eight days after the first offence and committed no doubt while he was on bail in respect of the first offence. I do not think the approach in Wong To and Chow Yu Chi, i.e. by combining the weights of the drugs in each charge to arrive at an overall starting point, applicable in the present case. Of course, I will take into consideration of the principle of totality.

17.  Having considered the totality of the offences and the total drugs involved, I consider the appropriate overall sentence should be 7 years’ imprisonment. I shall give the defendant one-third reduction for his plea of guilty. The defendant is therefore sentenced as follows: Charge 1, 2 years’ imprisonment; Charge 2, 3 years and 10 months’ imprisonment, of which 32 months to run consecutively to the sentence in Charge 1, the rest to run concurrently. The total term of imprisonment is 4 years and 8 months.