HKSAR v. Lam Kwan Wai

DCCC 117/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 117 OF 2014

____________

____________

________________________

REASONS FOR SENTENCE

________________________

1.Lam Kwan Wai you have pleaded guilty to one charge of trafficking in 42.22 grammes of a solid containing 34.63 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134 (charge 1); and one charge of possession of 1.14 grammes of a solid containing 0.70 grammes of cocaine, contrary to section 8 of the Dangerous Drugs Ordinance (charge 2).

2.In summary at around 12.26 on the 3 December last year the police intercepted you as you were leaving the 15/F of The Lamma Tower, 12-12A Hau Fook Street in Tsim Sha Tsui.   From your right front trouser pocket the police found a red draw string bag inside which was four transparent re-sealable plastic bags containing the ketamine and the cocaine. 

3.Under caution you said you were carrying the drugs for someone else as you had no money.  In a subsequent video interview you said that you were in debt and you could earn $200 if you delivered the drugs from Sau Mau Ping to Tsim Sha Tsui.

4.In passing sentence I have carefully considered everything said on your behalf by Ms Liang, including your young age; clear record and that you became involved in delivering drugs to repay a loan you had taken out to help support your family.  I have read the letters of mitigation from your family asking for leniency on your behalf. 

Trafficking in dangerous drugs

5.In Secretary for Justice v Hii Siew Cheng[2008] 3 HKC 325 the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years imprisonment.

6.I am satisfied on a mathematical approach the proper starting point after trial for 34.63 grammes of ketamine is 5 years and 3 months imprisonment.  In view of your clear record and young age Ms Liang asks for a starting point of 4 years imprisonment.  Whilst a sentencing judge may properly take into account clear record and young age the appeal courts have repeatedly said that for crimes of such gravity mitigating factors such as age and clear record would have little weight (see for example Secretary for Justice v Ko Fei Tat CAAR 15/2001).  Taking into account your clear record and young age I am satisfied a starting point of 5 years imprisonment is appropriate.  Giving you full credit for your plea of guilty reduces the sentence to 3 years and 4 months imprisonment.

Possession of cocaine

7.In HKSAR v Mok Cho Tik [2001] 1 HKC 261 the Court of Appeal said the starting point for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months but this does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant.  I am satisfied a starting point of 9 months imprisonment is appropriate.  Giving you full credit for your plea of guilty reduces the sentence to 6 months.

Totality

8.Ms Liang submits a concurrent sentence is appropriate and in support relies on the decision in HKSAR v Or Wai Tong CACC 250/2009.  Whilst it would not be right to pass an overall sentence greater than that which would have been passed had all the drugs been the subject of a single trafficking charge the circumstances are different in the present case in that the drugs concerned are different.  In my view a consecutive sentence for possession of cocaine is appropriate.  However looking at totality of sentence to be served and your young age and clear record I order the sentences to be served concurrently.

9.You are  convicted and sentenced as follows:

CHARGE 1 – 3 YEARS AND 4 MONTHS IMPRISONMENT;

CHARGE 2 – 6 MONTHS IMPRISONMENT CONCURRENT WITH CHARGE 1.