HKSAR v. Ho Yan Lam and Another

DCCC 923/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 923 OF 2012

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REASONS FOR SENTENCE

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1.D1 pleads guilty to one charge of possession of 0.09 gramme of a powder containing ketamine, contrary to section 8 of the Dangerous Drugs Ordinance, Chapter 134 (charge 1); and D2 pleads guilty to one charge of trafficking in 40.86 grammes of a powder containing 33.02grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance (charge 2).

2.In summary around 1725 hours on the 28th July this year whilst conducting patrol at the staircase of Kai Lok House in Kwun Tong the police saw the two defendants acting suspiciously.  The police then approached and intercepted the defendants.  D1 was holding the ketamine subject of charge 1 in her left hand.  A handbag was also seized from D1 inside which was a black bag containing 16 plastic bags containing the ketamine subject of charge 2.    

3.D1 admitted the ketamine in her hand was for her own consumption.  D2 admitted placing inside D1’s handbag the black bag containing the ketamine, which had been given to him by a friend and which he would return to his friend later.  D2 said he received no reward for doing this.

D1

4.In passing sentence I have taken into account the defendant is 19, 18 at the time of the offence.  I have carefully considered everything said on behalf of D1 by Miss Lee, in particular that the defendant is responding well to the treatment she is now receiving at the drug addiction treatment centre (“DATC”), which order was imposed in August this year in KTCC 3759/2012, the case papers of which I have read. 

5.The DATC report states the defendant has managed to behave herself while receiving treatment and although playful has accepted counselling.  The defendant is considered suitable for admission to the DATC under a fresh order. 

6.Whilst lenient, in particular considering the offence was committed whilst on bail, I am satisfied that in the best interests of the rehabilitation of the defendant, she should be allowed to continue with her treatment in the DATC.  D1 is convicted and sentenced to detention in a DATC.  The conviction is recorded.

D2

7.In passing sentence I have taken into account the defendant is 20.  I have carefully considered everything said on behalf of the defendant by Mr Kwan, together with the content of the defendant’s mitigation letter.    I have read the case papers and reports prepared in KCCC 2852/2012 (which case I note is in fact the same case as KTCC 3759/2012 involving D1) and KCCC 3243/2012.  In both cases the defendant was convicted of possession of ketamine for which he is now serving DATC.

8.At the last hearing Mr Kwan submitted the role of the defendant was that of a custodian and referred me to the case of R v Maginnis [1987] AC 303 cited in Archbold, Hong Kong 2012 at paragraph 29-28.  I have in the adjournment had the opportunity of reading the full judgment and related cases, including the Australian case of R v Carey (1990) 20 NSWLR 292, which reached a different decision on similar facts. 

9.The definition of trafficking includes “or otherwise dealing in or with the dangerous drug…”  Mr Kwan explains in pleading guilty the defendant accepts he knew that the bag contained ketamine and knew that his friend was a drug trafficker.  In these circumstances the defendant agreed to temporarily look after the drugs for his friend.  Whether or not this amounts to supply I am satisfied by agreeing to look after the ketamine for a person he knew was a trafficker in drugs as opposed to keeping the drugs for his own later consumption, the defendant was dealing in or with the dangerous drug (see for example HKSAR v Chan Hong [1995-2000] HKCLRT 147 at paragraph 10 and HKSAR v Akhemetzyanova, Irina CACC 194/2011). 

10.Whilst I have my reservation that the defendant was only a custodian of the drugs I am prepared to proceed to sentence on this basis.  Mr McNamara holding the same reservation fairly accepts the prosecution has no evidence to contradict what the defendant says. 

11.As a custodian Mr Kwan submitted the role of the defendant is less serious than that of other traffickers.  I disagree.  Although temporarily looking after the drugs this, in my view, is no different to the role of a courier or storekeeper.  In HKSAR v Manolo Irene Burnales [2001] 1 HKLRD 557 the Court of Appeal said that sentencing policy has been to maintain a consistent level of sentencing so that potential traffickers, who are frequently couriers or storekeepers, will be deterred from engaging in such activities.  In the Secretary for Justice v Chan Ka Wah [2008] 4 HKLRD 904 the Court citing this passage from Manolo said that whatever role a drug trafficker may play, the guidelines should be followed unless there are exceptional circumstances.

12.The defendant also claims he received no reward for looking after the drugs.  In HKSAR v Wong Suet Hau & another [2002] 1 HKLRD 69, the court considered the position where a trafficker does not have a commercial motive.  Reference was made to the case of R v Spalding [1995] 16 Cr App R (S) 803 which involved looking after drugs as a “minder” for a friend who was a dealer. Whilst a distinction has been drawn in the United Kingdom between a courier and a minder of dangerous drugs such distinction was not drawn by the Court of Appeal in Wong Suet Hau because in the United Kingdom “courier’ refers to an importer of drugs, which in Hong Kong is an aggravating factor attracting higher sentences than those imposed on other couriers and storekeepers or minders (see paragraphs 45-46). 

13.The Court of Appeal considering it to be inadvisable to have a blanket policy that in cases where there was no financial gain a reduction in sentence should almost inevitably follow, said at paragraph 47,

“It is the very fact of supply or, in the case of couriers and storekeepers, making possible the supply to others, which in trafficking, whether for commercial gain or not, needs to be dealt with rigorously. Making fine distinctions between different forms of trafficking and the motives behind them will, in our view, only serve to undermine the core policy of providing consistent levels of sentencing for traffickers based on the weight of the narcotics being trafficked”

and later at paragraph 49,

“It has to be borne in mind that the evil behind all aspects of trafficking in drugs, which the courts have a duty to deter, is ultimately the supply of dangerous drugs to the public, whether or not this is done for financial gain.”

Sentence

14.I am satisfied there are no exceptional circumstances to depart from the guidelines for ketamine.  The guidelines are those laid down in the Secretary for Justice v Hii Siew Cheng[2008] 3 HKC 325.  Where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years imprisonment. 

15.Although young the defendant has a history of drug offences, including two for trafficking in 2010 when he was sentenced to the DATC in KCCC 3684/2010.  Further the present offence was committed whilst the defendant was on bail for two separate offences of possession of dangerous drugs, for which as noted earlier he is now serving DATC. 

16.In all the circumstances I am satisfied the proper starting point after trial for 33.02grammes of ketamine is 5 years and 6 months imprisonment.  Giving the defendant full credit for his plea of guilty D2 is convicted and sentenced to 3 years and 8 months imprisonment.