HKSAR v. Lee Po-yi

DCCC996/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 996 OF 2009

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Reasons for Sentence

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1.This morning you appeared before me and pleaded guilty to two charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.  The total quantity of drugs involved were in a total quantity of 30.34 grammes of ketamine.

2.The Summary of Facts which had been admitted by you before you were convicted is simple and straightforward.

3.According to the Summary of Facts, in the evening of 6 July 2009, the police laid an ambush outside your residence in a public housing estate situated in Tai Po, and upon seeing you leaving the premises, the police immediately came out and intercepted you.  Upon a search, the police found, firstly, two plastic bags of suspected ketamine (Exhibit 1) in your skirt pocket. 

4.You were immediately arrested and cautioned, under which you admitted that, firstly, the two packets of “K-chai” were for your own consumption and for selling to the others.

5.Later, the police party searched your premises and further found three more plastic bags of suspected ketamine (Exhibit 2) in a drawer in your bedroom.  You were similarly arrested and cautioned and you further admitted that you kept those three packets of “K-chai” for your self-consumption and for selling to the others.

6.In a subsequent video record interview at the Tai Po Police Station on the same day, under caution, you revealed to the police that you had obtained altogether the five packets of “K-chai” from a male called Ah Lung at Tai Po in the evening on 4 July 2009.  Ah Lung told you that if you sold all the “K-chai” in question you would get a reward of HK$1,000.  You then carried the five packets of “K-chai” back to your home, and according to you, you were on your way to take two packets of “K-chai” from your home, intending to consume them together with your friends.

7.Finally, you admitted in the Summary of Facts that you possessed both Exhibits 1 and 2 for the purpose of trafficking.

8.You are a person of clear record.  You are now aged 22.  At the time of the offence you were aged 21.  You have received a Secondary 5 education in Hong Kong.  Previously you worked as a sales person in a toy company, and according to the antecedents statement, you were not addicted to any drugs and you appeared to enjoy good health condition.  You are still single and you are living together with your mother and your elder brother in your residence.  Your father passed away in 2006.

9.In mitigation, your counsel told the court that you committed this present offence foolishly because of economic reasons. You were not a drug addict, and your counsel had also submitted to the court for consideration altogether four letters written by yourself, your mother, your employer, and also a social worker. 

10.I do not intend to repeat the contents of the letters.  Suffice it to say that you have expressed your regret for committing the offence.  Your mother, of course, would urge me to consider giving you a chance and to deal with you as leniently as possible.  I should say that your mother had stated to me that after this incident she had suffered from depression and now had to consult a psychiatrist.  I, of course, feel very sorry for your mother, and your employer at the same time had wrote to the court, stating that you have a good working attitude and he was sure that you had learned this lesson in a hard way and asked the court to give you a chance.

11.Last, but not the least, the social worker, who had visited you while you were remanded in custody, had stated your position to the court and informed the court that now you have converted to the Christian faith and wanted to be rehabilitated.  It is urged that the court can be as lenient as possible.

12.Trafficking of dangerous drugs is of course a very serious offence.  Any one who was involved in this kind of criminal activity and was caught by the police would be expected to be dealt with severely by the court. 

13.Although you are only 21 and you had a clear record when you committed the offence, my view is that the offence itself is simply too serious to justify any non-custodial sentence.  As your counsel has rightly pointed out, an immediate custodial sentence is simply inevitable.  However, the policy consideration demands the imposition of a substantial term of imprisonment even upon young offenders like you and persons with your background.  The court has to send a clear message to those people who are contemplating to commit a crime like this.

14.In recent years, the abuse by the youngsters in Hong Kong of ketamine is becoming so serious that in 2008 the Court of Appeal had acceded to the request by the Secretary of Justice to upwardly revise the sentencing guidelines for trafficking in ketamine.  This present offence of course took place after the new sentencing guideline was in place. 

15.Therefore, according to the case of Hii Siew Cheng [2009] 1 HKLRD 1, the new sentencing guideline for trafficking in a quantity of ketamine between 10 to 15 grammes is between 4 to 6 years. 

16.In this case, as I have said, there are altogether two charges, the total quantity involved was just over 30 grammes of ketamine.  Therefore, according to the new guidelines, the starting point for this quantity will therefore be 5 years.

Self-consumption

17.During the course of mitigation, your counsel had informed the court that part of the drugs involved in this case was for your self-consumption, although, for obvious reasons, he was unable to quantify the quantity which were intended for your self-consumption.

18.In the case of HKSAR v Wong Suet Hau and Anor. [2002] 1 HKLRD 69, the Court of Appeal had warned the sentencing judge to look with the greatest care at all the surrounding circumstances in order or before to accept the mitigation for any reduction of sentences on the grounds of self-consumption.

19.In your case, you had a clear record.  According to the antecedents statement which has been admitted by your counsel it has stated clearly that you were not addicted to any drug.  Furthermore, as I have said, you have already just admitted in the Summary of Facts that you possessed all the contents of the drugs for the purpose of trafficking.

20.In mitigation, I was told by your counsel that you committed the offence simply because of money, albeit that at one point of time after the arrest you have told the police that part of the drugs was for self-consumption.

21.Upon further clarification with the prosecution, I was further told that the present drugs fetch a market value of just over $6,000.  In any event, your counsel informed the court that it is your instruction that you did not pay Ah Lung for the obtaining of those drugs at all and it is expected that you would sell the whole lot and turn the proceeds of drugs to Ah Lung and for that you would get a reward of HK$1,000.

22.All in all, I hold that this claim for reduction of sentence for your own consumption had not been made out.  Therefore, in my judgment, there will be no reduction on the original sentences imposed.

23.Although I said that I feel very sorry for your mother, but the Court of Appeal has said in so many previous occasions that family circumstances has no part to play in a serious case such as trafficking.  Apart from your own plea of guilty, there is no other mitigating factor as I can see. 

24.After the one-third customary discount on account of your plea, the sentence that I shall pass to you is one of 40 months’ imprisonment on each charge, and because of the totality principle, the sentence on both charges are to run concurrently.