HKSAR v. Lam Hok Leung Matthew

DCCC 1071/2020

[2021] HKDC 801

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1071 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of “Trafficking in a dangerous drug”. The dangerous drug involved is Ketamine.

Summary of Facts

2.At around 7:35 pm on 23 July 2020, police officers intercepted the defendant at Exit A inside Tai Wai Station.  A body search was conducted when the following items were found on the defendant:-

(a)  11 transparent resealable plastic bags containing a powder which was suspected to be dangerous drugs (Exhibit 1);

(b)  cash HK$920; and

(c)  a mobile telephone

3.Upon arrest and under caution at the scene, the defendant admitted that he sold “K” intending to earn some money for his baby and asked for a chance.

4.The defendant was subsequently interviewed under video-recording from 12:44 am to 1:01 am on 24 July 2020 at the police station.  Under reminded caution, the defendant stated, inter alia, that he was selling dangerous drugs at the time of his arrest.  He knew that Exhibit 1 contained dangerous drugs known as “K” and each packet was about 0.7 grammes in weight.  He was invited to sell dangerous drugs for quick money by a man, who knew that he had a daughter. The man would call the defendant to give instructions to deliver dangerous drugs.  The defendant would receive $120 as reward for each delivery.

5.The Government Chemist subsequently confirmed that Exhibit 1 contained 7.82 grammes of a powder containing 6.63 grammes of ketamine.

6.The street value of the dangerous drug was about HK$3,644 as of July 2020.

7.The defendant admits that he was in possession of Exhibit 1 for the purpose of unlawful trafficking.

The Law

8.The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine in SJ v HII Siew Cheng [2009] 1 HKLRD 1.  For over 1 gramme to 10 grammes of ketamine, the sentence ranges from 2 to 4 years’ imprisonment.

9.In HKSAR v Farhan Asham [2021] HKDC 564, [2021] HKEC 2180, the starting point for 6.65 grammes of ecstasy (which adopts the same tariff as ketamine)  was 3 years and 3 months’ imprisonment.

Mitigation

10.The defendant was born on 8 March 2001 and was 19 years old at the time of the offence.  He had a clear record.

11.Prior to his arrest, he was living with his parents, his grandfather, his elder sister.  He has a girlfriend and they have a daughter.  His partner gave birth to their daughter in early 2019.

12.The defendant was only educated up to Form 4.  Counsel stated that the defendant struggled to find a well-paid job.  He mostly worked as a casual delivery worker, earning about HK$4,800 per month.  He found it increasingly difficult to make ends meet after the birth of his daughter.  He intended to make some quick money to cover his living expenses and committed this offence out of stupidity.

13.Counsel submitted that the defendant had only delivered one packet of ketamine prior to his arrest.  There was no evidence that he sold the drugs to underage people.  He only delivered the ketamine pursuant to instructions.

14.A number of letters from the defendant’s family members have been submitted in mitigation.  Since the discovery of this offence, his family has been very supportive.  The defendant has co-operated and made full admission upon his arrest, pleaded guilty at the first opportunity, demonstrating his remorse.

Sentence

15.“Drug trafficking” is a very serious crime and a clear message must be conveyed to the general public that drug traffickers would most certainly be punished by long term imprisonment, so that there is a deterrent effect.  For such offences, personal circumstances rarely carry any weight.  Financial pressure accounts for no weight as a mitigating factor.  No distinction is drawn for being only a courier.  Apart from extreme youth, youth is also not a mitigating factor.  Sentence is discretionary and authorities are not straitjackets. However, unless there are sufficient grounds, it would be wrong for the court to depart from the normal sentencing guidelines.

16.In all the circumstances of this case, I adopt a starting point of 3 years and 3 months (39 months).  I give the defendant a full one third discount for his guilty plea (reduced to 26 months).  I sentence the defendant to 26 months’ imprisonment.