HKSAR v. Lam Kwong Lee

DCCC 365/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 365 OF 2016

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge each of trafficking in dangerous drugs[1] (charge 1) and forgery[2] (charge 2).

2.Charge 1 alleged that he on 15 October 2014 unlawfully trafficked in 12.8g of powder containing 6.9g of ketamine.

3.Charge 2 alleged that he on 1 September 2014 made a forged payroll with the intention to induce someone to accept it as genuine.

Outline of facts

Charge 1

4.On 15 October, the defendant called an undercover Police officer and asked if the officer had friends who wanted some ketamine. The officer said he will call him back.

5.The officer did call back the defendant after reporting to his superior. He told the defendant that someone wanted half an ounce of ketamine. The defendant said the price would be $1,500.

6.The two met up about one and a half hour later outside the ‘Circle-K’ convenience store at Choi Wah House of Choi Yuen Estate. The defendant gave the officer 5 re-sealable transparent plastic bags wrapped in a piece of white tissue. The officer paid the defendant  $1,500 in return. The contents of the plastic bags were later confirmed by government chemist to be 12.8g of powder with a narcotic content of 6.9g of ketamine.

Charge 2

7.On 1 September, the defendant approached the same undercover Police officer who was posing as a staff of Mysystem Cyber café. The defendant asked the officer to borrow $30,000 from Promise Finance Co. Ltd because his friend needed the money urgently, promising the officer a $10,000 reward.

8.The officer told the defendant that with his wages, he would not be able to borrow that much money. The defendant said to the officer that he will forge an income certificate for the officer to use for borrowing money.

9.The defendant then used one of the computers in the café to forge an income certificate purportedly issued by “MSYSTEM.COM.HK LIMITED”, falsely stating that the officer had a monthly salary of $10,000. The defendant then told the officer to input his name and identity card number on the forged document.

10.The defendant then sent the completed forged document to the officer’s email account as an attachment. The defendant told the officer to print out the document so that he can go to apply for the loan the following day. The officer did print out the document but did not go ahead to make the application.

11.The undercover operation eventually went overt on 10 February 2015 and the defendant was arrested on the same day.

Previous conviction

12.The defendant has one previous conviction for the possession of dangerous drugs dating back to June 2012. He was imprisoned for 3 months by a magistrate at Fanling Magistracy. I will not take this record as an aggravating factor in the present case.

Mitigation

13.The defendant is 26, educated up to Form 3 level. He is single and lives with his mother and two siblings who work as a receptionist and a construction worker.

14.At the time of the offences, the defendant was not regularly employed. After his arrest, in order to distant the defendant from his peers, the family decided for him to go to Shanghai. There the defendant worked as an estate agent for 2 to 3 months.

15.After the defendant was formally charged and ordered not to leave Hong Kong, he found employment in a tunnelling company as a miner, earning about $26,000 per month. It is hard work. The defendant should be given credit for finding himself stable employment and contributing to his family. The defendant also took part in activities to help to persuade other people to stay away from drugs.

16.In relation to the forgery charge, Mr Leung said that the defendant was just helping someone to get a loan and so he went to the undercover officer for assistance. The defendant was not concerned if the application was successful or not. The defendant was really half-hearted about the loan and did not discuss further with the officer about it. The forged document was later on handed over to the undercover officer’s handling officer and was never going to be used in any event.

17.I find that this is not a mitigating factor. The reason why the document was not going to be used was due entirely to the fact that the person whom the defendant had told to use the forged document was an undercover Police officer. It was not because of any remorse or hesitation on the part of the defendant.

18.In relation to the trafficking charge, Mr Leung told the court that the defendant was helping his friend to dispose of some ketamine and that was why he approached the undercover officer to buy some drugs. After the defendant received the $1,500, he handed over the whole sum to his friend. He did not get any profit out of this transaction.

19.I also find that this is not a mitigating factor. The defendant was acting as a middle-person for this ‘friend’ who wanted to sell the ketamine. The fact that the money he received for the drugs was then handed over to the ‘friend’ does not make the defendant less culpable in his role as the intermediate seller of the ketamine.

20.Lastly, Mr Leung submitted in mitigation that the court should give due regard to the totality principle and pass a sentence that will not be too severe as to impair the defendant’s rehabilitation. The employer is aware of the defendant’s difficulty and promised to re-employ the defendant when he is released.

Sentence

Charge 1: trafficking in a dangerous drug

21.The maximum sentence for trafficking in dangerous drugs is that of life imprisonment.

22.According to the sentencing tariff laid down in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006, the range of sentence for trafficking in 6.9g of ketamine is between 2 to 4 years’ imprisonment.

23.The defendant was acting as a middle-person peddling the sale of the ketamine. He was also the person who handled the money for his principal. The defendant played a small but important part in the trafficking.

24.Given the circumstances of the commission of this offence and applying the sentencing tariff mentioned above, I adopt 36 months as the starting point for the trafficking of the 6.9g of ketamine.

25.I find that there are no aggravating factors in the defendant’s commission of the offence. I find that the only mitigating factor is the defendant’s guilty plea.

26.The defendant is therefore sentenced to 24 months’ imprisonment for charge 1.

Charge 2: forgery

27.The maximum sentence for forgery on conviction upon indictment is that of 14 years’ imprisonment.

28.The forgery is a simple one. The potential loss was $30,000. The plan is unsophisticated. I find that a proper starting point is that of 18 months’ imprisonment.

29.There are no aggravating factors and the only mitigating factor is the defendant’s guilty plea, for which I grant him the full one-third discount.

30.The defendant is therefore sentenced to 12 months’ imprisonment for charge 2.

Totality and final sentence

31.Bearing in mind that this is the defendant’s first trafficking conviction, his relatively light criminal record and the fact that he managed to find gainful employment in Hong Kong pending trial, I order that 3 months of the sentence in charge 2 be served consecutively to the sentence in charge 1, the balance concurrently.

32.The final sentence for the two charges is therefore that of 27 months’ imprisonment.