HKSAR v. Lee Kam Shan

DCCC1027/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1027 OF 2009

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Reasons for Sentence

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1.The defendant has pleaded guilty to an offence of trafficking in dangerous drugs.  The particulars of the offence are that on 12 May 2009, outside a building in Happy Valley, Hong Kong, he trafficked in a quantity of drugs, 24 tablets containing a total of 2.42 grammes of MDMA, 5 tablets containing 0.03 grammes of nimetazepam and 14.43 grammes of a powder containing 12.3 grammes of ketamine.

2.At 6.25 pm, on 12 May this year, an officer was conducting an anti-dangerous drugs operation outside the Lee King Building in King Kwong Street, Happy Valley when he noticed a private vehicle.  The defendant was sitting in the driver’s seat of the vehicle.  The officer found the defendant’s actions suspicious and told the defendant to come out of the vehicle for a body search.  Before vacating the vehicle, the defendant was seen to have discarded something underneath the driver’s seat.  Under the driver’s seat of the vehicle, the officer found two plastic bags, each containing small bags of suspected drugs.

3.The defendant was arrested, and under caution, he claimed the drugs were for his own consumption.  The officer noticed that there were eight small empty plastic bags inside one of the bags containing the suspected drugs.  The officer also recovered from the trouser pocket of the defendant 13 pieces of paper recording suspected drug transactions.  A search of the defendant’s home revealed no paraphernalia for consumption of dangerous drugs.

4.The drugs were sent for forensic analysis.  One of the bags was found to contain the powder containing 11.53 grammes of ketamine.  The other drugs were found inside the other bag.

5.The defendant has a previous conviction in 2006 for taking a conveyance without the owner’s consent which was dealt with by way of a fine.  I am told that the defendant is 29 years of age.  He is a taxi driver earning about $10,000 per month.  He and his wife have three children aged 7, 9 and 5, and they live in a public housing estate together with his parents.  I am told that his 7 year-old son who is studying in China.

6.Counsel for the defendant says that her client is not a habitual user and came to meet people who did use drugs and sold the drugs from time to time, making $1,000 on each occasion.  I am told that the defendant is regarded as a good husband and responsible father and is very remorseful for his actions.  That is confirmed by a number of letters which have been placed before the court from his parent, his wife, his daughter and one from a legislative councillor.  They confirm that he is a responsible husband, son and father.  He has had little education and had difficulty getting a good job.  He started working as a taxi driver in 2007 and all the money he earns goes to his family.

7.Counsel has no doubt told the defendant exactly what sort of sentence the courts would impose for trafficking in these quantities of drugs.  For trafficking in ketamine in excess of 10 grammes, the courts are required to impose sentences of four to six years’ imprisonment.  For trafficking in excess of 1 gramme of MDMA, the tariff is two to four years’ imprisonment.  The defendant was trafficking in 12.3 grammes of ketamine and 2.42 grammes of MDMA.

8.I have considered the question of totality, and I have decided that an appropriate starting point for this offence should be one of 4½ years’ imprisonment.  The defendant has pleaded guilty to the charge and is entitled to the usual discount for that plea.  The defendant will, therefore, go to prison for three years.