HKSAR v. Lam Sing Shan

DCCC 1037/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1037 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to one count of trafficking in a dangerous drug.

2.The particulars are that on 30 September 2015 the defendant unlawfully trafficked in 12.55 grammes of a powder containing 10.07 grammes of ketamine as well as traces of a powder containing cocaine found in plastic bags.

3.The facts are that on that date at about 7 pm, two police officers stopped the defendant as he left his home in Tin Shui Wai. He was stopped and searched.  The result of the search was the officers found house keys as well as cash and a mobile phone on the defendant.

4.This led to a subsequent house search where the police found drugs on a table in the living room.  The police found, more specifically, two transparent resealable plastic bags containing a total of 12.55 grammes of a powder containing 10.07 grammes of ketamine.  The police also found in a cigarette box, a total of 64 transparent resalable plastic bags containing traces of cocaine.  There was also paraphernalia normally associated with packaging and selling dangerous drugs, those included an electronic scale, a plastic spoon and a lighter.

5.Under caution the defendant admitted that he possessed the ketamine for his own consumption.

6.In a subsequent video-recorded interview, he expanded and told the police that he had bought the ketamine for $1,000 only the day before.  He admitted that the 64 transparent resealable plastic bags also belonged to him and the traces of cocaine were residue from his previous consumption of dangerous drugs.

7.The defendant admits that the estimated street value of the ketamine is around $1,500.

8.The defendant’s best mitigation today is his plea.  The defendant is 28 years old, single and the only child of a broken family.  His parents are divorced and he has not seen his mother since he was 2.  He lives alone and supports himself working as a warehouse worker earning $12,000 a month.

9.The defendant is not a man with clear record. He has 12 previous convictions obtained over eight court appearances, ten of those are related to possession of dangerous drugs and his other two convictions are for trafficking in dangerous drugs. In 2010 he was sentenced to 45 months’ imprisonment. 

10.According to the criminal record, the defendant has been sent to Drug Addiction Treatment Centre on four separate occasions.  Clearly, the defendant has a long history of drug addiction, the first conviction dates back to 2005.

11.Part of the mitigation put forward on behalf of the defendant is that part of the dangerous drugs found by the police were for his own consumption and part was intended to be sold. 

12.Having considered the defendant’s drug addiction history and his response to the police upon his arrest, I accept that part of the ketamine would have been for his own consumption.  The prosecution’s stance to this mitigation is neutral.

13.The charge involves traces of cocaine which I view as de minimis.  I will not consider the traces of cocaine when I find an appropriate starting point.

14.There is a tariff for trafficking ketamine and I have referred myself to the Court of Appeal authority: The Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323.  The Court of Appeal says that where between 10 to 50 grammes of ketamine is trafficked, a 4 to 6 year term of imprisonment would be appropriate.  Here, the purity of ketamine is 10.07 grammes which would attract a start point of 4 years’ imprisonment.

15.However, I have taken into account the authority of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 where the Court of Appeal considers cases where the mitigation put forward is that part of the dangerous drugs would be for self-consumption and part to be trafficked.  The Court of Appeal is of view that depending on circumstances of each individual case, the discount off the basic starting point can be between 10 to 25 per cent. 

16.When considering what discount, a sentencing court should look at factors such as the quantity of the dangerous drug, the nature of the drug and what part of that drug is for his own consumption.

17.I have also considered the authority of HKSAR v Tsang Chung Keung CACC 165/2014 where the Court of Appeal discusses and considers several sentences dealing with this mitigation put forward.

18.After considering the facts of this case, the nature and quantity of the drug involved, I will take a starting point of 4 years’ imprisonment and reduce it by 9 months to take into account that part of the ketamine was for self-consumption.  That is a discount of just over 19 per cent.  That reduces the starting point to one of 39 months’ imprisonment. 

19.The defendant has pleaded guilty and entitled to a discount of one-third.  After that discount is applied to that starting point, the ultimate sentence will be one of 2 years and 2 months.