HKSAR v. Lam Chun Yin

HCCC208/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 208 OF 2009

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Reason for Sentence in the above Case

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COURT:  This defendant pleaded guilty today on what was to have been the first day fixed for a six-day trial, having advised the court on 28 September 2009 that he was prepared to plead.  He had been committed for trial on 3 July 2009.

He pleaded guilty on an amended indictment to two charges.  The first was trafficking in a dangerous drug, contrary to section 4(1)(a) and (3)(e) of the Dangerous Drugs Ordinance.  The drug was 84.61 grammes of powder containing 69.24 grammes of ketamine.

The 2nd charge was possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134.  The drug in that charge was 19.84 grammes of a solid containing 13.85 grammes of cocaine.

The facts, which were admitted, showed that the police conducted an anti-dangerous drug operation and laid ambush in the vicinity of a flat on the 4th floor of a building in Portland Street.  The defendant and his girlfriend were intercepted by the police as they left the flat.  The police inquired of the defendant where he lived, and he said he lived in the flat he had just left.

He was seen to have something in the pocket of his shorts, and when he was asked what was inside his pocket, he did not reply.  The police then searched the defendant and found a cloth bag containing a number of plastic bags, each of which themselves contained other bags which contained suspected dangerous drugs.  There was also a plastic bag which contained 80 plastic bags.

The defendant was arrested and cautioned.  Under caution, the defendant said that the “K” and the “Ho Lok” had been bought by him for his own consumption; that it had nothing to do with his girlfriend, and she did not know anything about it.

A search was subsequently conducted at Flat B using the keys seized from the defendant, but no suspicious items were found.

Later, a video-recorded interview was taken from the defendant.  Under caution, he said that “K” was the dangerous drug ketamine and “Ho Lok” was the dangerous drug cocaine.  He reiterated that the drugs were all for his own consumption and it had nothing to do with his girlfriend.

The dangerous drugs were analysed by the Government Chemist and found to be in the quantities that are set out in the particulars of the charge.  The market retail value of the total drugs seized was estimated at $27,201.

The accused’s fingerprint was found on one of the plastic bags containing ketamine.

The defendant admitted that the cocaine was for his own consumption and the ketamine was for the purposes of trafficking.

The defendant has a clear record.  He is now aged 19.  He left school after Form 3 at the age of 15.  He worked as a waiter and as a kitchen worker, but at the time of his arrest he was unemployed.  He had lost his employment late in 2008.  I am advised by his counsel that he had a drug habit at that time.  He had no money and no job.  He had contact with his own suppliers, and he was tempted by the easy money, he thought, to engage in trafficking.  Although he was charged with trafficking, it was submitted that he was in a very small way of business, and he himself was still taking drugs at the time of his arrest.

As counsel has pointed out, the main mitigating factor in this case is his plea of guilty, and he is entitled to a full one-third remission for that plea.

In considering sentence, I have referred to the tariff cases.  In respect of the 1st charge, the range of sentence is 6 to 9 years.

I take a starting point of 7 years in this case, and he is sentenced, after discount, to 4 years and 8 months’ imprisonment.

In respect of the possession charge, the range of sentence should be in the vicinity of 12 to 18 months, but given that he was carrying the drugs with the ketamine, there should be an addition of 12 months for the latent risk factor inherent in that operation.

Accordingly, his sentence is enhanced to 2 years’ imprisonment.  He is given the full one-third discount, which makes 16 months.

I order that the sentences run concurrently except for 4 months in respect of Charge 2, which runs consecutively to the sentence on Charge 1, making a total of 5 years’ imprisonment.