HKSAR v. Lai Ka Kin

DCCC 910/2022

[2023] HKDC 1547

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 910 OF 2022

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REASONS FOR SENTENCE

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1.Mr Lai pleaded guilty before me to one charge of Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. Particulars are that he, on 16 May 2022, on a private car bearing registration mark EC2132, outside Wo Che Plaza, No 3 Tak Hau Street, Sha Tin, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 22.44 grammes of a solid containing 18.75 grammes of ketamine.

Facts admitted by Mr Lai

2.On 16 May 2022, at 0115 hours, a police vehicle AM8118 was conducting mobile patrol in Sha Tin near Tak Hau Street.  When it was approaching a stationary private vehicle EC2132, the latter suddenly drove off.  AM8118 chased after EC2132 and demanded it to stop.  The officers on board demanded EC2132 to stop.  After being chased for about 100m, EC2132 stopped outside Wo Che Plaza on Tak Hau Street.  Mr Lai was the driver; and a female passenger was on the front passenger seat.

3.Police searched EC2132.  They found hidden under the window switch panel of the driver’s door a big pink plastic bag which contained:-

(a)  One transparent resealable plastic bag containing 23 small transparent resealable plastic bags with pink pattern containing 18.5 grammes of a solid containing 15.4 grammes of ketamine;

(b)  One transparent resealable plastic bag containing 3 small transparent resealable plastic bags with green pattern containing 2.38 grammes of a solid containing 2.03 grammes of ketamine; and

(c)  One transparent resealable plastic bag containing 2 small transparent resealable plastic bags with black pattern containing 1.56 grammes of a solid containing 1.32 grammes of ketamine.

4.Mr Lai was arrested for Trafficking in a dangerous drug.  Under caution, he said the “drugs K” were bought with an intent to sell; and that his girlfriend knew nothing.

5.Cash of $2,060 found on Mr Lai, and his 2 mobile phones were seized by the police.

6.During a cautioned VRI conducted later the same day, Mr Lai said:-

(a)  At around 3 to 5 pm on the previous day, he met Ah Keung at a park at Un Chau Street, Sham Shui Po;

(b)  Ah Keung asked if he (Mr Lai)  was still taking ketamine; he answered yes;

(c)  Ah Keung said he had ketamine on hand and went on to sell 28 packs of ketamine all contained in a pink plastic bag to Mr Lai for $6,000;

(d)  He (Mr Lai)  left the park and put the pink plastic bag under the window switch panel at the driver’s door of EC2132;

(e)  At around 8 something that night, he picked up his girlfriend in To Kwa Wan for a joyride;

(f)  At 0115 hours on 16 May 2022, he stopped EC2132 outside a school; when he saw a police car from the rear view mirror, he drove EC2132 away for fear that the hidden drugs might be discovered by the police;

(g)  He consumed ketamine 1-2 times a week; he bought the drugs from Ah Keung and had thought of reselling the same to his friends who also took ketamine; and

(h)  He had not yet consumed or sold any of the drugs.

7.The retail price of the drug found was $10,636.

8.Mr Lai now admits he was in possession of all the ketamine solids for the purpose of unlawful trafficking.

Criminal record

9.Mr Lai has 4 previous convictions including one trafficking in dangerous drug conviction in 2015 for which he was sentenced to 4 years 9 months’ imprisonment.

Antecedents

10.Mr Lai is aged 37 (36 at the time of the offence), educated to F1 level, unemployed.  He lived with his mother in Ngau Tau Kok.  He was last discharged from prison or another place of custody in January 2018.

Mitigation

11.Mr Lee Yiu Chung of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Lai.  The following is a summary of the mitigation submissions.

12.Mr Lai’s mother and elder sister are in court to give their support.

13.Mr Lai is single.  Before the onset of COVID, Mr Lai had been working on and off as a casual painting worker at construction sites earning on average $15,000 a month.  His mother (63)  also works, as a cleaning worker, and earns $12,000 a month.

14.During remanded custody, Mr Lai has reflected upon his past deeds and has decided to turn over a new leaf after release from prison.

15.The Court of Appeal has promulgated in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 a 6-step approach to sentencing cases involving offences of trafficking dangerous drugs.

16.Here, for 18.75 grammes of ketamine, the relevant guideline band under Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 would have been between 4 and 6 years’ imprisonment.

17.Although Mr Lai admitted to the police that he had thought of reselling the drug to his friends who also took ketamine (which would, if materialized, amount to dealing in dangerous drugs to others and hence becomes more serious), he was at the material time merely having a joyride with his girlfriend.  It is submitted that Mr Lai should be treated as someone akin to a courier or storekeeper.

18.Mr Lai pleaded guilty in time and so he should be given the full 1/3 discount to sentence.

19.It is submitted that the final sentence would be between 36 and 38 months’ imprisonment.

20.Mr Lai hopes to be given another chance so that he can take care of his aged mother and reintegrate into the workforce as soon as possible.

21.Mr Lai asks for leniency.

22.Mr Lee submits on behalf of Mr Lai two mitigation letters (in Chinese)  written respectively by Mr Lai’s mother and Mr Lai himself.  The contents generally are that Mr Lai was influenced by bad peers to commit the offence; that the motive was to make quick money; that Mr Lai is now regretful for laying the entire financial burden on his chronically-ill mother.  Both writers asked for a lenient sentence for Mr Lai so that he may re-unite with his mother and start afresh earlier.

23.Mr Lee also submits two certificates showing Mr Lai had completed and passed two courses run by a religious organization on Life Planning.

24.Mr Lee told the court that he is not relying on self-consumption as a mitigating factor.

Sentence

25.Since Mr Lai has only one previous conviction for trafficking in dangerous drug and he had completed the related sentence in early 2018 (ie more than 4 years before the commission of the present offence), I will not regard it as an aggravating factor under the principle identified in HKSAR v Chau Hon Kwong [2011] 1 HKLRD 630, at paras 32-36, helpfully brought to my attention by My Lee.

26.For starting point, I will adopt 53 months it being the nearest round figure when one makes an arithmetic calculation using 18.75 grammes against the guidelines for trafficking in ketamine.

27.Mr Lai pleaded guilty in good time earning for himself the customary 1/3 discount from sentence.  There are no other mitigating factors of weight to justify another reduction in sentence.  I will take the nearest round figure in months’ term as the final sentence.

(Mr Lai, please stand)

28.The sentence is 35 months’ imprisonment.