HKSAR v. Li Kin Fai

DCCC 1069/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1069 OF 2016

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is ketamine.

Summary of Facts

2.About 5:15 p.m. on 18 September 2016, in response to a report of a person having fainted inside a vehicle, PC 18417 (PW1) and his teammates arrived at an unnamed road outside The Riverpark, Che Kung Miu Road, Shatin.  PW1 found the defendant inside a parked motor vehicle RR 8058 ("the Vehicle") and requested him to alight from it.  The defendant told PW1 that he fell asleep in the Vehicle.

3.PW1 searched the defendant and nothing suspicious was found.  He then searched the Vehicle in the presence of the defendant and found in the storage compartment on the right side of the steering wheel a green cloth bag containing 18 resealable plastic bags which contained a total of 47.4 grammes of a powder containing 12.4 grammes of ketamine.

4.Under caution, the defendant admitted that the substance was "K Chai" and that it was for his own consumption.  In his video recorded interview, the defendant claimed that he was a vehicle attendant for a flower shop and was the only person using the Vehicle.  He admitted that he purchased the ketamine in the afternoon on 16 September 2016.  He described in details how he purchased and picked up the ketamine.

5.The defendant's residence was searched but nothing suspicious was found.

Mitigation & Sentence

6.The defendant is 23 and has 1 conviction record (a "simple possession" offence for which he was given a suspended sentence).  Defence counsel Mr. YEUNG informed me that the defendant resides with his girlfriend and they have a daughter (aged 1.5). The defendant's mother passed away when he was a teenager.  Then a few years later, his father had a stroke.  About 2 years ago, the defendant's father, who resides with the defendant, had 1 leg amputated due to diabetes.  The defendant's daughter was born around the same time.

7.In mitigation, Mr. YEUNG submitted that owing to his father's health and the birth of his daughter, the defendant was under a lot of stress.  He resorted to gambling to seek relief and ended up owing someone named "Fat Boy" $3,000.  Fat Boy kept pressing the defendant for repayment.  Eventually, Fat Boy asked the defendant to deliver drugs, whereby the defendant could set off $1,500 against his debt. As a result, the defendant was told to pick up the drugs at APM and then deliver them to Tai Wai.

8.After picking up the drugs at APM, the defendant drove to Tai Wai to wait for Fat Boy's instructions. Having worked overnight, the defendant was too tired so he fell asleep in the Vehicle whilst waiting for Fat Boy's call.  Mr. YEUNG confirmed that what the defendant said under caution was not entirely correct and that he is not making any claim for self-consumption.  Finally, a bundle of mitigation letters was placed before me; their contents are duly noted.

9.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.  Being pressed for repayment by a creditor is not an excuse to resort to drug trafficking. Needless to say, the debt was incurred as a result of gambling.

10.A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders, so that there is a deterrent effect.

11.As a judge, I see day in and day out persons in my court being charged with "drug trafficking".  Many of them were just like the defendant – persons used by others as "couriers".  When people realize that the court would not treat drug traffickers lightly, there would be, hopefully, fewer willing "couriers"; thus making it difficult for criminals to exploit people with financial needs or other vulnerabilities.  Undoubtedly, most drug traffickers are "used" by bad persons (or so they claim).  That is the reason why we need to make people think twice before they agree to be "used".

12.The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see  SJ v HII Siew Cheng [2009] 1 HKLRD 1).  For 10 to 50 grammes, the sentence ranges from 4 to 6 years' imprisonment.  The defendant trafficked in 12.4 grammes, the appropriate starting point is 4 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 32 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.   I sentence the defendant to 32 months' imprisonment.