HKSAR v. LAM CHUN TING

DCCC 781/2021

[2022] HKDC 498

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 781 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea and agreement to Summary of Facts for a charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

Facts

2.  At around 0601 hours on 9 May 2021, PW1, a police officer, was on anti-crime patrol with others outside Tin Shui Wai Shopping Centre, Tin Shui Estate, 9 Tin Shui Road, Tin Shui Wai, New Territories, when he spotted the defendant in a parked private car bearing registration number XC1565 at the above location.  He was in the driver seat and another man was sitting in the front passenger seat. 

3.  Upon car search, the following items were found in the storage compartment on the driver’s door:-

(1)  a resealable plastic bag containing 18 resealable plastic bags containing a total of 6.1 grammes of powder containing 5.3 grammes of ketamine; and

(2)  a resealable plastic bag containing 5 resealable plastic bags containing a total of 0.89 grammes of solid containing 0.83 grammes of cocaine.

4.  The defendant was arrested for possession of dangerous drugs by PW1. Under caution, he said that the drugs were for his own consumption.

5.  The estimated street value of the ketamine and the cocaine was respectively HK$3,202.50 and HK$1,092.03.

6.  At the material time, the defendant possessed the drugs seized for the purpose of unlawful trafficking.

Criminal record

7.  The defendant had 2 previous convictions of fraud back in 2011 for which he was sentenced to detention centre.

Mitigation

8.  The defendant is currently 29 years old.  He received education up to Form 2 level.  He is separated from his wife.  They have two sons aged 8 and 3.  The defendant is the sole bread winner of the family. 

9.  Defence counsel submitted that upon release from detention, the defendant had kept himself out of trouble for the last 10 years and has been working as a delivery worker for the same company for about 7 years, subsequent to which he obtained his driving licence and had since then been driving and delivering water with a stable income of around $30,000 to $50,000 per month. It was admitted that the defendant operated his own foot massage shop using most of his savings.  The business unfortunately was badly affected by the social movement and COVID-19 and he was in huge debt.  He was also laid off by his employer.  In order to make the ends meet and to maintain the outgoings of the shop, he committed the crime. 

10.  The defendant is now deeply remorseful and that he committed the offence in desperate circumstances.

11.  Defence counsel submitted that the defendant now pleads guilty at the earliest opportunity.  He asked this court for the relevant sentencing discount.

12.  3 mitigation letters were submitted from the defendant himself, his mother and his best friend.  These letters say that the defendant is a hardworking and responsible young man, a supportive son and a loving father and that he regrets what he has done.  They all ask this court to give him a chance to start afresh and the defendant is now looking forward to see his sons.

Discussion

13.  Before sentencing, this court has carefully considered all that was advanced on behalf of the defendant including the mitigation letters submitted and the legal authorities in the area. 

14.  On conviction of upon indictment of this charge, the maximum sentence is 5 million fine and imprisonment for life. 

15.  Trafficking in dangerous drugs is a serious offence and in usual circumstances, it is well established that personal background and circumstances is not considered a valid mitigating factor.

16.  The drugs involved in this case is 5.3 grammes of ketamine and 0.83 grammes of cocaine. 

17.  For trafficking 0.83 grammes of cocaine, following the authority of Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, in adopting the guidelines in R v Lau Tak Ming [1990] 2 HKLR 370, the appropriate sentencing starting point is 20 months’ imprisonment. 

18.  For trafficking 5.3 grammes of ketamine, following the authority Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the appropriate sentencing starting point is 35.4 months’ imprisonment.

19.  If all the drugs in this case, ie, 6.13 grammes of drugs trafficked is cocaine, the sentencing starting point should be 46 months’ imprisonment.  If the drugs trafficked in this case is ketamine, the sentencing starting point should 37.68 months’ imprisonment. 

20.  Under the combined approach and the ratio test, the sentencing starting point in this charge should be 38 months and 21 days’ imprisonment.  This court finds it most appropriate to adopt this combined approach in calculating the sentencing starting point.

21.  Two types of drugs are involved in this case which constitutes an aggravating feature in sentencing, for which the sentencing starting point is enhanced by 3 months’ imprisonment, taking the sentencing starting point to 41 months 21 days’ imprisonment. 

22.  The defendant has pleaded guilty and is therefore entitled to full one-third sentencing discount.  For this charge, he should be sentenced to 27 months 24 days’ imprisonment. 

23.  Committing the offence because of financial difficulties is not a valid mitigating factor.  This court knows however that on the date of arrest, the urine test result performed on the defendant confirmed that the defendant is a cocaine user himself and for this reason, the court is willing to discount the sentence to 26 months’ imprisonment.

24.  Accordingly, the defendant is sentenced to 26 months’ imprisonment in this case.