HKSAR v. Lai Tat Ho

DCCC133/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 133 OF 2010

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Reasons for Sentence

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1.The defendant pleaded guilty before me to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.The facts admitted by the defendant revealed that around midnight on 22 December 2009 he was looking around furtively inside a light goods vehicle. The police felt suspicious and conducted a body search on him. As a result, two packets of ketamine, which are the subject matter of the charge, were found inside his trousers pocket. Under caution, the defendant admitted that he was helping Ah Shui to pass the ketamine to a customer to earn HK$500.

3.After the arrest of the defendant, the light goods vehicle was searched. Next to the driver’s seat, one electronic scale and two piles of re-sealable plastic bags were found inside a container. Under caution, the defendant admitted that those belonged to him and he would use the scale to weigh the ketamine in front of his customer.

4.Further admissions were made by the defendant in the police station. He said, inter alia, that he had been asked by Ah Shui to pass the ketamine to a customer and to collect from the customer HK$1,500, and that he had been asked by Ah Shui to park the vehicle at the location to wait for that customer. He further admitted that he intended to ask the customer to give the smaller plastic bag of drug to him as tips and that was why there were two bags of drug.

5.The defendant was born in 1985 and is now aged 25. He bought the light goods vehicle in question in 2004 and prior to his arrest, he was a self-employed driver and delivery worker, earning about HK$10,000 per month. However, in around 2008, he got addicted to ketamine. He is single and lived with his parents.

6.The defendant has one previous conviction of possession of dangerous drugs for which he was sentenced on 30 June 2009 to 6 months’ imprisonment suspended for three years. He was also fined HK$10,000 on that occasion. Despite that suspended term, the defendant committed the present offence six months after the term was passed; in other words, the present offence was committed by him during the operational period of the suspended term.

7.In mitigation, Mr Chui emphasised that the defendant was fully co-operative, admitting the offence from the first moment. He is remorseful and he pleaded guilty. Mr Chui also told the court that for the offence which gave rise to the suspended sentence, the defendant also pleaded guilty and did not contest the trial.

8.It was said that the defendant committed the present offence because he hoped to get some ketamine for his own use while delivering the same to the customer and he also wanted to earn more money.

9.It was said that the defendant is not a bad boy. He had a stable job and a stable income. He only committed the present offence out of stupidity and a lenient sentence is asked for.

10.On the information provided, the defendant apparently was leading a relatively normal life with a stable job and income. It is also said that he has a supportive family and a girlfriend.

11.Whether it was merely out of stupidity that he committed the present offence or otherwise could not be ascertained, but whatever the reason, he knew full well that he was trafficking in ketamine at that time.

12.In SJ v Hii Siew Cheng & Anor [2009] 1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in ketamine. For trafficking in over 1 gramme to 10 grammes of ketamine, a term of imprisonment of between 2 to 4 years is called for. In the instant case, the ketamine involved is 6.37 grammes. For this quantity, I consider a starting point of 39 months to be appropriate.

13.I have considered all the matters put in mitigation for the defendant. The only mitigation is the defendant’s plea. He is going to receive one-third reduction for that and he is going to receive 26 months’ imprisonment for this offence.

14.However, this offence was committed during the operational period of the suspended sentence. I see no reason not to activate the suspended term. In fact, for a suspended sentence to be effective, it should be taken seriously by the courts. (See, for example, Li Kim Wai v R [1980] HKLR 833.) I therefore order that the 6-month term imposed in respect of the possession of dangerous drugs offence on 30 June 2009 be activated in full.

15.Having considered all the relevant matters and the totality principle, I order that this suspended sentence should run wholly consecutively to the term of 26 months which I pass in respect of the present offence.

16.Defendant, stand up. You are therefore to serve a term of 26 months for the present offence. The 6-month term of the suspended sentence is also to be activated in full and to be served wholly consecutively to this 26-month term.