HKSAR v. Lam Leung Fan

DCCC1392/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1392 OF 2009

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Reasons for Sentence

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1.The defendant pleaded guilty to 2 charges of "Trafficking in a dangerous drug". The dangerous drug involved is ketamine.

2.This case is a typical "stop and search" incident. At about 1:00 am on 25 October 2009, the defendant was stopped by police officers patrolling on Woo Sung Street, Yau Ma Tei. Upon search, a plastic bag containing suspected dangerous drug was found inside a hidden compartment in the shoulder bag carried by him. The defendant was then arrested for "drug trafficking". Under caution, the defendant admitted that he was helping others to deliver the "goods" to make a living. The substance contained in the plastic bag was later confirmed to be 27.27 grammes of a powder containing 23.16 grammes of ketamine. This is Charge 1.

3.A set of car keys was also found on the defendant. The police officers pressed the remote control attached to the car keys. The alarm of a private car (NZ 5455) parked on Woo Sung Street was activated. The defendant admitted that NZ 5455 belonged to him. His car was then searched. A black box was found inside the compartment located behind the gearbox. There were 3 plastic bags containing suspected dangerous drug in the black box. The defendant was arrested again for "drug trafficking". The substance contained in the 3 plastic bags was later confirmed to be a total of 26.90 grammes of a powder containing 22.62 grammes of ketamine. By his guilty plea, the defendant now admits that he possessed the 3 plastic bags of ketamine for the purpose of unlawful trafficking. This is Charge 2.

4.The defendant is now 29 years old. He has 9 previous convictions, 5 of which are related to dangerous drugs. His last conviction took place in August 2006, which is also drug trafficking. He was sentenced to 16 months imprisonment. The defendant is married and has a 6-year-old son. His wife and son both reside in Hong Kong. They rely of welfare.

5.Regarding Charge 1, defence counsel Mr. SO submitted that the defendant could only earn $500 for the delivery job. At the time of offence, the defendant was in financial difficulty. For Charge 2, Mr. SO explained that the defendant purchased the drug on behalf of his friends. A large portion of the ketamine was for his friends and a small quantity for his own consumption. He gained no profit from doing so.

6.In my view, financial difficulty is most certainly not an excuse to commit any criminal offence. Regarding Charge 2, there is simply no evidence as to how much the defendant intended for his friends and how much for his own use. I will sentence him based on the entire quantity of ketamine seized.

7.A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment.

8.The sentencing tariff for trafficking in ketamine is laid down in SJ v HII Siew Cheng [2009] 1 HKLRD 1. For 10 to 50 grammes, the sentence ranges from 4 to 6 years imprisonment. About 23 grammes of ketamine is involved in each charge. Hence, I adopt a starting point of 4.5 years for each charge. One-third discount is given for the guilty plea, reducing the sentence to 3 years. Apart from this, I see no other mitigating factors which warrant any further discount. The sentence for each charge is therefore 3 years (36 months).

9.Regarding totality, I bear in mind that the total quantity of ketamine found in both charges is 45.78 grammes. The defendant should be punished on this basis. In my view, for 45.78 grammes of ketamine, a starting point of 5.5 years is required. With the one-third discount, the sentence should be 3 years and 8 months (44 months). Accordingly, I order 8 months in Charge 2 to run consecutive to Charge 1, arriving at a total term of 3 years and 8 months (44 months) for both charges.