HKSAR v. Lam Wai Kuen and Another

DCCC257/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 257 OF 2010

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Reasons for Sentence

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1.D1 and D2 are jointly charged with 1 offence of "Trafficking in a dangerous drug" (Charge 1). They both pleaded guilty to Charge 1. They each face an additional charge of "Resisting a police officer in the due execution of his duty" (Charges 2 and 3 respectively). The Prosecution agreed to leave Charges 2 and 3 in the court file.

Summary of Facts

2.This case is a typical "controlled buy" scenario.

3.About 6:30 pm on 25 December 2009, PC 5205 (PW1) called the phone number 5160 4787 posing as a customer. A male voice claiming to be "Ah Kuen" answered the call. "Ah Kuen" offered to sell 28 grammes of ketamine to PW1 at $1,800. They agreed to meet outside Oi Chi House, Yau Oi Estate in Tuen Mun.

4.About 7:00 pm, a private car (LF 8563) approached PW1 outside Oi Chi House. D1 was the driver and D2, the front seat passenger. PW1 gave $2,000 to D1, who then passed the money to D2. D2 gave $200 to D1 as change, who then passed them to PW1. D1 was also holding 2 paper bags. D2 asked D1 to give the "K" to PW1. D1 asked PW1 if he was buying "K" for Christmas party. D1 then gave the 2 paper bags to PW1. At this juncture, police officers laying ambush nearby came out and revealed their police identities. They arrested D1 and D2.

5.At the time of arrest, D1 had $45,000 cash on him, whereas D2, about $3,500. $2,600 cash and a number of mobile phones were also found inside LF 8563. One of these mobile phones contained the SIM card for the number 5160 4787.

6.Each of the 2 paper bags given to PW1 by D1 was found to contain 1 plastic bag (respectively P1 and P2). Government Chemist confirmed that P1 contained 13.48 grammes of a powder containing 9.63 grammes of ketamine; and P2 contained 13.38 grammes of a powder containing 10.80 grammes of ketamine.

7.Under caution, D1 admitted that the car belonged to him, although he had asked a friend to be the registered owner for insurance reasons. He claimed that the money found on him was borrowed by him. He and D2 were on their way for a meal prior to their arrest.

8.D2 admitted under caution that all the ketamine found belonged to him. He sold P1 and P2 to PW1 at $1,800. He purchased P1 and P2 from a male named "Ah Hung" at Tin Shui Estate at $1,400. He asked D1 to give him a ride for delivering something; D1 did not know D2 was trafficking in ketamine. His profit in this transaction was $400.

9.D1 and D2 now admit that they acted in a joint enterprise in trafficking P1 and P2.

Mitigation & Sentence

10.D1 is now 20 and has 2 previous dissimilar convictions. He is a cleaning worker earning a daily wage of $350. The contents of the 2 letters from his employer are noted. Mr. FUNG submitted that D1 is not the "brain man" since he did not pocket the money at the scene.

11.D2 is now 19 and has 2 previous convictions, both of which are drug-related. He was released from Training Centre in May 2009 and is currently a F.5 student. Miss TSANG submitted that D2 intended to earn some quick money as he did not want to burden his parents with his school fees. The contents of the 3 mitigating letters are noted.

12.Based on section 109A(1A) of the Criminal Procedure Ordinance (Cap.221) and owing to the seriousness of this case, I took the view that it was unnecessary to obtain any pre-sentencing reports for either defendant. The only available sentencing option in this case is immediate imprisonment.

13.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. 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.

14.A total of 20.43 grammes of ketamine are involved in the present case. Hence, I adopt a starting point of 4.5 years. 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 for either one. The sentence I impose on each defendant for Charge 1 is 3 years imprisonment.