HKSAR v. Lam Chun Ming

DCCC 211/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 211 OF 2009

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 60 tablets containing 0.43 grammes of nimetazepam; 60 tablets containing 6.48 grammes of ecstasy; 9.63 grammes of powder containing 7.96 grammes of ketamine and 5.5 grammes of a solid containing 3.65 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2.In summary in the early hours of the 17th January this year the police approached the defendant who was sitting alone inside a private car of which he was the registered owner. On search of the car the police found inside a storage compartment near the handbrake 6 foil packs containing the nimetazepam; 2 plastic bags containing the ecstasy tablets; 31 plastic bags containing the ketamine and 18 plastic bags containing the cocaine.

3.The courts have equated for sentencing purposes cocaine with heroin (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69). In R v LAU Tak-ming[1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin. 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.

4.In June of last year the Court of Appeal in the Secretary for Justice v HII Siew-cheng [2008] 3 HKC 325 laid down new guidelines for trafficking in ecstasy and ketamine. Where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years imprisonment.

5.Following these guidelines the proper starting points after trial would be 3 years imprisonment for 3.65 grammes of cocaine and 4 years and 3 months imprisonment for 14.44 grammes of ecstasy and ketamine.

6.Mr Yeung submits on behalf of the defendant that I should adopt the combined approach to sentence. I am satisfied the proper approach to sentence is to adopt the ‘individual’ approach (see HKSAR v CHENG Yat-ming CACC 455/2006 as applied in HKSAR v CHAN Ho-wai CACC 129/2008). Whichever approach is adopted the court must give proper regard to totality. In this regard I must not overlook that had all the drugs been cocaine the starting point would not exceed 5 years and 6 months imprisonment. I am satisfied an overall starting point of 5 years imprisonment is appropriate. I am further satisfied the small quantity of nimetazepam adds nothing to the overall criminality of the trafficking charge.

7.In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Yeung. Under caution the defendant said he had just bought the drugs for his own consumption. Mr Yeung has detailed history of the defendant’s addiction to both cocaine and ketamine and informs the court that the defendant bought the drugs intending to sell them on at the same price but keeping a small quantity to feed his own addiction. Taking into account the defendant has a history of drug addiction having been to the DATC in 2008, I am prepared to accept a small quantity of the drugs was for his own consumption.

8.In deciding how much weight should be attached to the fact some of the drugs were for the defendant’s own consumption I have considered the decision in HKSAR v. WONG Suet-hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34. I am satisfied this makes only slight difference to the sentence to be imposed.

9.Taking into account part was for the defendant’s own consumption I reduce the starting point to one of 4 years and 9 months imprisonment. Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 3 years and 2 months imprisonment.