HKSAR v. Lam Kin Sum

DCCC 449/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 449 OF 2017

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of trafficking dangerous drugs, namely 37.3 grammes of ketamine and 6.17 grammes of cocaine.

Summary of facts

2.At about 1.26 am on 12 February 2017, the police followed the defendant’s private vehicle because of his bad driving manner.  Police demanded the defendant to pull over the car. 

3.During a car search, the following items were found underneath the seat pad of the rear passenger seat: -

(a) a plastic bag containing 15 transparent plastic bags containing 20.30 grammes of ketamine;

(b) a transparent plastic bag containing: -

(i) three transparent resealable plastic bags containing 0.4 grammes of cocaine; and

(ii) two transparent resealable plastic bags containing 17 grammes of ketamine;

(c) a candy bag containing 40 transparent resealable plastic bags containing 5.77 grammes of cocaine.

4.The street value of all the drugs was estimated to be about $13,109.75.

5.A body search found two mobile phones and $16,024.7 and $100 RMB.

6.In a video record cautioned interview, the defendant claimed that all the drugs were for his own consumption.

Previous convictions

7.The defendant had four previous convictions in 2002 and 2004 for copyright offences.

Mitigation

8.The defendant is now 34, single.  He was a driver before, earning about $17,000 per month.  Together with his part-time job as a waiter, he has a total earning of about $20,000 per month.  Both his parents passed away.  He is now living with his two sisters and they are both in court today to support him. 

9.He committed the present offence because he was in debt in a sum of $150,000.  That was the first time he tried to sell drugs.  He is now very remorseful.

Sentence

10.There are guidelines for trafficking dangerous drugs.  In the authority of SJ v Hii Siew Cheng [2008] 3 HKC 323, the Court of Appeal has said that where the quantity of ketamine was between 10 to 50 grammes an appropriate starting point would be between 4 to 6 years.  In the present case, for 37.3 grammes of ketamine, a starting point of 5 years 3 months would be appropriate.

11.As to 6.17 grammes of cocaine, the guideline of Lau Tak Ming [1990] 2 HKLR 370 should follow and it falls into the sentencing bracket of 2 to 5 years.  That means a starting point of 3 years 8 months would be appropriate.

12.This is a case which involved more than one type of dangerous drugs.  In my view, it will be appropriate to take the combined approach.  There is a significant amount (37.3 grammes) of ketamine compared to a smaller amount (6.17 grammes) of cocaine, even though cocaine is a more potent dangerous drug.

13.It would be appropriate to firstly consider the starting point for ketamine and then enhance the starting point to take into account of the quantity of cocaine.

14.The defendant confirmed that the mitigation does not advance on the basis of self-consumption.  The defendant was not a drug addict.  I therefore do not need to consider the self-consumption factor when I pass sentence on the defendant.

15.When I pass sentence on the defendant, I have taken into account of all the mitigating factors on his behalf and all the letters from his sisters, his aunt and his employer.  In a gist, they all tell me that the defendant is a very filial son.  He took great care of his mother who passed away last year. His employer said that the defendant committed the present offence because of his greediness over money.  In any event, they all asked for leniency for the defendant.

16.However, time and time again there are many authorities to reaffirm that financial stress is not a mitigating factor.

17.Drug-trafficking is serious offence and the court takes a serious view in passing sentence with deterrent effect.  To this end, I adopt a starting point of 5 years and 3 months for 37.3 grammes of ketamine.  I further enhance the sentence by 9 months in view of 6.17 grammes of cocaine.

18.The total sentence arrives at 6 years. I reduce to 4 years in view of his guilty plea.