HKSAR v. Lam Wai Yip

DCCC 220/2020

[2020] HKDC 816

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 220 OF 2020

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 13.43 grammes of a solid containing 7.74 grammes of cocaine and 24.3 grammes of a solid containing 21.10 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.In summary at around 4:47 p.m. on 31 December last year the defendant was intercepted at the Customs Departure Hall of the Hong Kong-Macau Ferry Terminal for customs clearance. 

3.Upon search the cocaine and the ketamine were found inside two sealed tin foil bags in the defendant’s underpants and was contained in a total of thirty-two transparent plastic bags. 

4.The defendant was also found in possession of HK$960; some foreign currency; a mobile phone and a ferry ticket to Macau.   

5.The estimated street value of the cocaine and ketamine was around $29,500.69.

Mitigation

6.In passing sentence, I have carefully considered the written and oral submissions of Ms Yip, including that the defendant aged 32, is single, lives with his parents and elder brother.  Prior to his arrest the defendant was working in a restaurant[2].

7.I take into account that the defendant’s income having been drastically reduced he was desperate to earn fast money to pay for his mother’s medical treatment and therefore agreed to deliver the dangerous drugs to Macau[3].   

8.I have read the defendant’s letter in which he also explains why he committed the offence and asks for an opportunity to reinvent himself so he can find a job to provide for his mother. 

9.I have read the letters written by the defendant’s parents expressing that their son is remorseful and ask for leniency.  The defendant’s father and elder brother are in court today to show their support.

10.I take into account the defendant has no similar convictions for trafficking in a dangerous drug.  The defendant does however have a previous conviction for conspiracy to obtain services by deception in 2014 for which he was sentenced to 11 months’ imprisonment. 

Guidelines

11.The courts have equated for sentencing purposes cocaine with heroin[4].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[5].  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment.    

12.In Secretary for Justice v Hii Siew Cheng[6]the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years. 

13.Adopting the “individual” approach to sentence based on quantity alone the starting point for trafficking in 7.74 grammes of cocaine would be just under 4 years and 4 months’ imprisonment and for trafficking in 21.10 grammes of ketamine would be just over 4 years and 6 months’ imprisonment. 

14.Applying what has been referred to as the “absurdity test” a starting point of 8 years and 10 months’ imprisonment is clearly excessive for if all the drugs were cocaine the starting point based on quantity alone would be just under 6 years and 5 months’ imprisonment. 

15.I agree with Ms Yip that the “combined” approach to sentence is appropriate[7]. Adopting a starting point of 4 years and 3 months’ imprisonment for trafficking in 7.74 grammes of cocaine, I enhance the starting point by 12 months to 5 years and 3 months’ imprisonment to reflect the fact that the defendant was also trafficking in ketamine. 

16.Cross-checking with both the “conversion test” and the “ratio test”, which would result in a starting point of between 5 years and 4 months’ imprisonment and 5 years and 5 months’ imprisonment[8], I am satisfied a starting point of 5 years and 3 months’ imprisonment properly reflects the aggravating factor that the trafficking involved two serious dangerous drugs[9]. 

International element

17.The exportation of cocaine and ketamine adds an international element to the offence and is an aggravating feature of sentence. 

18.In HKSAR v Chung Ping Kun the Court of Appeal held that as a broad guideline an enhancement of 6 months was appropriate for trafficking in up to 250 grammes of ice, heroin and cocaine[10].

19.In HKSAR v Choi Chun Wo, the Court of Appeal stated:[11]

“However, clearly at the lower end of the scale, a sentencing court must ensure that the level of enhancement is just and proportionate in the circumstances of the case, bearing in mind that such enhancement must still be of sufficient length to act as a deterrent”.

20.The court in HKSAR v Choi Chun Wo held that an enhancement of 3 months was appropriate for importing into Hong Kong 5.26 grammes of ice. 

21.I am satisfied for exporting 7.74 grammes of cocaine and 21.10 grammes of ketamine to Macau the starting point should also be enhanced by 3 months to 5 years and 6 months’ imprisonment.

22.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 3 years and 8 months’ imprisonment.