HKSAR V.Yan Kin Lung

DCCC 1052/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1052 OF 2013

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REASONS FOR SENTENCE

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

Summary of Facts

Charge 1

2.About 10:35 pm on 10 August 2013, PC 4561 (PW1) saw the defendant alighting from a taxi outside Ying Tai House, Fu Tai Estate, Tuen Mun.  He was holding a box drink ("E1").  PW1 stopped him for enquiry.  Upon PW1's revealing of his police identity, the defendant immediately put E1 into his sling bag ("E2").

3.PW1 searched E2 and retrieved E1.  Inside E1, there were 9 resealable plastic bags (collectively "E4"; later found to contain a total of 117.80 grammes of a solid containing 45.28 grammes of ketamine).  Under caution, the defendant admitted that he intended to sell E4 for profits.

Charge 2

4.The defendant revealed to PW1 that he had more drugs at home.  With his consent, the defendant's residence located at the same housing estate was searched in the same evening.

5.In a kitchen cabinet, PW1 found 3 resealable plastic bags (collectively "E6"; later found to contain a total of 38.06 grammes of a solid containing 22.57 grammes of ketamine).  Under caution, the defendant admitted that he intended to sell E6 for profits.

6.In his video recorded interview, the defendant admitted that he bought E4 from an unknown male at $5,000.  He intended to sell them at $800 per bag.  In relation to E6, he claimed that he would sell them to his friends upon being asked.  He further admitted that he had been selling drugs for 3 months, and that he is addicted to ketamine.

Mitigation & Sentence

7.The defendant is now 25 and single.  He has 1 conviction record which is not drug-related.  According to his antecedent statement, he is a scaffolding worker and has been a ketamine addict since 2008.

8.Mitigation letters written by the defendant and his family members were placed before me; their contents are duly noted. In his own letter, the defendant stated that owing to his unstable income, he wanted to earn some quick money to feed his ketamine addiction and for his father, who is a stroke patient.

9.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 even for fresh offenders.

10.The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see  SJ v HII Siew Cheng [2009] 1 HKLRD 1).  For 10 to 50 grammes, the sentence ranges from 4 to 6 years' imprisonment. 

11.In the present 2 charges, the defendant trafficked in 45.28 grammes and 22.57 grammes respectively.  For such quantities, the appropriate starting points should be 5.5 years and 4.5 years respectively.  Hence, for Charge 1, with the one-third discount for the guilty plea, the sentence is reduced to 44 months' imprisonment.  Similarly, the sentence for Charge 2 is reduced to 36 months' imprisonment.

12.In relation to totality, the defendant trafficked in a total of 67.85 grammes of ketamine in both charges.  According to HII Siew Cheng, for 50 to 300 grammes, the sentence ranges from 6 to 9 years.  In other words, the overall starting point should be 6 years' imprisonment.  With the guilty pleas, the overall sentence is reduced to 4 years' imprisonment.

13.In mitigation, defence counsel Mr. HO submitted that half of the drug found in the defendant's home (i.e. E6) was for his own consumption.  However, I note that the defendant did not mention this to the Police.  In fact, he admitted in his video recorded interview that he would sell E6 to his friends upon being asked.  I have grave doubts as to the quantity for self-consumption claimed by him.  On the other hand, I accept that the defendant is a ketamine addict.  There is a real possibility that he might consume a portion of the drug in his possession.  I will grant him a nominal discount of 2 months from the overall sentence of 4 years' imprisonment to reflect this.

14.In order to arrive at an overall sentence of 46 months' imprisonment, I order 2 months in Charge 2 to run consecutive to Charge 1.