HKSAR v. LAM CHOI CHOI,TONY

HCCC 28/2018

[2018] HKCFI 1649

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 28 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Introduction

The defendant was committed for sentence on one charge of trafficking in 992 grammes of a powder containing 658 grammes of ketamine.

Briefly stated, the defendant was seen carrying a carton box in Fung Wo Lane, Sha Tin, in the evening of 11 July 2017. He was then intercepted by police outside Wo On House. Inside the box, police found two pieces of newspaper wrapping a transparent re-sealable plastic bag containing ketamine which was the subject matter of the charge.

Under caution, the defendant said that he obtained the ‘K Chai’ for sale just for the medical expenses of his mother. In a subsequent video recorded interview, the defendant said that he was promised $2,000 by the person who recruited him for the job but had yet to receive any reward.

The estimated retail value of the ketamine seized was $305,536.

Defendant’s background

Defendant was born in China and is now aged 26. He came to Hong Kong in 2005 and received secondary education. After that he worked mainly as a kitchen worker earning about 12,000 to 14,000 per month but was said to be unemployed at the time of arrest. He has a clear record.

The defendant’s parents separated in 2008 and formally divorced in 2012. The defendant lived with his mother and younger sister in a public housing unit and ceased to have contact with his father. Life had been difficult for the defendant’s family after the father’s desertion. In 2012, the same year of the divorce, the mother suffered a stroke and was reduced to a vegetative state ever since. That happened at the time when the defendant and his younger sister were still at a relatively young age and shortly after both of them had started to enter the society to work.

The mother eventually died in December 2017. That happened whilst the defendant was remanded in custody for the present offence. As a consequence the defendant was unable to say goodbye to his mother or to attend her funeral which adds much to the defendant’s sorrow. The younger sister who has been closed to the defendant, now resides and works on the Mainland.

Mitigation

Ms Tjia emphases that the defendant committed the offence because of the financial straits attributed to his mother’s illness; that the defendant now realises that he was very ignorant and is deeply remorseful and that he pleaded guilty at the earliest opportunity. I have also read the letters of mitigation written by the defendant, the defendant’s younger sister, extended family members in China and friends pleading for leniency.

Sentencing

The Court of Appeal has said that the starting point for the offence of trafficking is to be determined primarily by the quantity of the dangerous drug concerned; that the mathematical starting point should not be departed with without reasons and that an accused was a courier is not a sufficient reason for departing from the mathematical starting point. See HKSAR v Leung Kwai Ping & Anor No. 2 [2003] 2 HKC 575 and HKSAR v Conde Nassou CACC 427/2014.

Based on the tariff laid down in Secretary of Justice v Hii Siew Cheng [2009] 1 HKLRD 1, trafficking in 658 grammes of ketamine attracts a starting point of 12 years and 3 months’ imprisonment.

I have regard to all that is said on behalf of the defendant in mitigation. I have every sympathy to the defendant. Nevertheless it is well established that financial hardship and family circumstances are not factors which may reduce the sentence for a serious offence of trafficking, HKSAR v Lee Man Wai CACC 386/2005.

In my view, the only significant mitigating factor which could reduce his sentence is his timely plea at committal, for which he is entitled to the full one-third discount. Therefore, the defendant is sentenced to 8 years and 2 months’ imprisonment.