HKSAR v. Lai Chi Man

DCCC 5/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 5 OF 2011

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Reasons for Sentence

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Introduction

1.The Defendant is convicted upon his own guilty plea of one charge of trafficking in 1.73 grammes of cocaine and 29 grammes of ketamine.

2.The facts admitted by the Defendant reveal that:

(i)  During a house search on the evening of 22^nd October 2010 at Room 224, Wah Chui House, Wah Fu Estate, Aberdeen (the “Premises”) in the presence of the Defendant, police found the following items in the cabinet in the living room:

(a)  One plastic bag containing 20 plastic bags containing suspected ketamine (“E3”);

(b)  One plastic bag containing 8 plastic bags containing suspected cocaine (“E5”);

(c)  One electronic scale;

(d)  One pack of adhesive tape; and

(e)  Three plastic bags containing a pile of small plastic bags.

(ii)  The Defendant was then arrested for the offence of trafficking in dangerous drugs. Under caution, the Defendant said that he wanted to earn some money as he was then unemployed and had no money.

(iii)In a subsequent cautioned video-recorded interview, the Defendant admitted inter alia that:

(a)  E3 was ketamine he bought from someone;

(b)  E5 was cocaine he bought from the same person at the price of HK$5,000; and

(c)  The electronic scale, the pack of adhesive tape and the small plastic bags were used to pack cocaine and ketamine – usually 0.3 gramme of cocaine per pack and 2.7 grammes of ketamine per pack for selling to others.

(iv)  Government Chemist examined E3 and E5 and found that:

(a)  E3 contained a total of 48.71 grammes of a powder containing 29 grammes of ketamine; and

(b)  E5 contained a total of 2.39 grammes of a solid containing 1.73 grammes of cocaine.

(v)  At all material times, the Defendant possessed E3 and E5 for the purpose of trafficking.

Previous conviction record and Antecedent

3.The Defendant has 6 previous convictions, out of which there are 2 convictions of possession of dangerous drugs sentenced in 2001 and 2005. For the purpose of this case, I am not going to take those 2 convictions of possession of dangerous drugs into account as an aggravating factor. However, the Defendant’s last conviction of theft was sentenced on the 9^th September 2010 for 3 months’ imprisonment suspended for 24 months.

4.The Defendant was born in April 1983. At the time of the offence, he was 27 years old. He has received education up to Primary 6. He used to work as a temporary delivery worker. He is single.

Mitigation

5.Three letters respectively from the Defendant himself, his elder sister and his girlfriend were submitted to this Court asking for leniency. It was stated in those letters that the Defendant was remorseful.

6.It was also submitted that some of the cocaine seized was for the Defendant’s own consumption. I have already indicated to the Defendant’s solicitor that in light of the sentencing tariff for trafficking in cocaine, it makes no, if not very little, difference for the purpose of this sentence.

7.It was also submitted that after the Defendant’s arrest, he has given information to the police but no further action was taken by the police subsequent to the giving of information by the Defendant. As the Defendant’s provision of information to the police did not lead to any fruitful result, I do not think it constitutes a valid mitigating factor.

Sentencing Tariff

8.This case involves trafficking in two types of dangerous drugs, namely cocaine and ketamine.

9.In Attorney General v Chang Chen Liu-sa [1995] 1 HKCLR 69, the Court of Appeal held that the guidelines for sentence in R v Lau Tak Ming [1990] 2 HKLR 370 were applicable to cocaine. It follows that for trafficking in a quantity of up to 10 grammes of cocaine, the sentence should be 2 to 5 years’ imprisonment.

10.In Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal held that for trafficking in a quantity of 10 to 50 grammes of ketamine, the sentence should be an imprisonment of between 4 to 6 years.

11.Since the present case involves trafficking in two types of dangerous drugs, I have considered the Court of Appeal’s authorities on the two sentencing approaches: HKSAR v Yip Wai Yin CACC 80/2003, HKSAR v Cheng Yat Ming CACC 455/2006, HKSAR v Ho Chi Shing CACC 216/2008 and HKSAR v Ko Ka Hing CACC 355/2008. In this connection, I quote the Hon Yeung JA in HKSAR v Ho Chi Shing in which his Lordship said:

“14. In the “combined” approach, … the most serious drug provides the starting point of sentence, which can then be adjusted upwards to take into account the quantity of the less serious drug.

15.  The “individual” approach … involves a separate starting point for each of the component drugs and the starting points will then be combined and adjusted to form an overall starting point.

16.  Whether to adopt the “combined” or the “individual” approach depends on the circumstances of a particular case and it is a matter of discretion for the sentencing judge. Whatever approach is adopted, the important consideration is the totality of the overall starting point.

17.  The applicant trafficked in substantial quantities of both cocaine and ketamine. The drugs were not mixed, but in separate and distinct packages. The judge was entitled to adopt the “individual” approach by identifying separate starting points for trafficking in the cocaine and ketamine, and then adopting an overall starting point.”

12.In light of the aforesaid Court of Appeal authorities and in light of the fact that the cocaine and ketamine were contained and intended to be sold in separate packages, I am minded to adopt the “individual” approach.

13.In the present case, I adopt a starting point of 2 years’ imprisonment for trafficking in 1.73 grammes of cocaine. (In this connection, I repeat that even taking into account the Defendant’s allegation that some of the cocaine was for his own consumption, I still maintain the starting point of 2 years’ imprisonment in light of the sentencing tariff laid down in Lau Tak Ming.) I adopt a starting point of 5 years’ imprisonment for trafficking in 29 grammes of ketamine. Having given consideration to totality, I consider an overall starting point of 5½ years’ imprisonment appropriate.

14.As the Defendant pleaded guilty to the charge, I give him 1/3 discount thus reducing his sentence to 44 months’ imprisonment. There being no other mitigating factors justifying further reduction, I sentence the Defendant to 44 months’ imprisonment for the present case.

15.I also activate the three months’ imprisonment sentenced in ESCC 2917 of 2010. That was a conviction of theft happened prior to the commission of the present offence. It is separate and distinct from the present offence. As such, the 44 months’ imprisonment in the present case will run consecutively with the 3 months’ imprisonment sentenced in ESCC 2917 of 2010.