HKSAR v. Lam Chi Fung

DCCC 8/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 8 OF 2015

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REASONS FOR SENTENCE

The defendant faces 1 charge of "Trafficking in dangerous drugs" (Charge 1) and 1 charge of "Possession of Part I Poison" (Charge 2). He pleaded guilty to both charges.

Summary of Facts

2.About 6:25 pm on 15 October 2014, police officers saw the defendant coming out of Room 804, Shui Choi House, Tin Shui (I) Estate ("the Flat").  He was stopped for investigation.  After a brief commotion, he claimed that he was residing at the Flat.

3.The Flat was searched and the Police found the following items in a room :-

(i) 12 plastic bags which contained a total of 142 grammes of a powder containing 64.60 grammes of ketamine;

(ii) 2 plastic bags which contained a total of 1.33 grammes of a powder containing 0.70 gramme of ketamine;

(iii) 1 plastic bag which contained 3.62 grammes of a powder containing para-aminobenzensulphonamide (a Part I poison);

(iv) 1 plastic spoon which contained traces of a solid containing ketamine;

(v) 1 plastic bag which contained traces of a powder containing ketamine;

(vi) 9 plastic bags which contained traces of a powder containing ketamine;

(vii) 5 plastic bags which contained traces of a powder containing ketamine and methamphetamine; and

(viii) 1 foil packet which contained paracetamol and 5 plastic bags which contained non-controlled substances.

An electronic scale was also found in the same room. Keys to the Flat were found on the defendant as well.

4.In his video-recorded interview, the defendant stated that he possessed the only key to the room in which the drugs were found.  He would lock the door so no one else could go inside.  He admitted that he owned the 14 plastic bags of ketamine found in his room and that he obtained them from a man for the purpose of giving them to others.  He claimed that he did not want to do so and had only used them for self-consumption.  He also admitted that the spoon and the electronic scale were for dividing and weighing the ketamine respectively.

Mitigation

5.The defendant is 29 and has 6 conviction records, which include 2 "trafficking" offences and 3 "simple possession" offences.  His last conviction was a "trafficking" offence; he was sentenced to 8 months' imprisonment in June 2008.  Defence counsel Ms. MA submitted that for the defendant's 2 previous "trafficking" convictions, the offences were relatively minor based on the sentences he received (a DATC Order and 8 months' imprisonment respectively).  Ms. MA stressed that the defendant has managed to stay out of trouble in the past 6 years.  A bundle of mitigation letters was placed before me; their contents are duly noted.

6.Ms. MA informed me that the defendant is married but separated.  He currently resides with his mother.  Regarding the present offences, Ms. MA explained that the defendant was working as a cook in a restaurant earning $19,000 per month, but he lost his job 10 days prior to his arrest.  As a result, an acquaintance named Ah Fai gave the ketamine to the defendant.  They had an agreement that if anyone wanted to buy drugs, the defendant would be contacted.

7.On the other hand, as claimed in his video-recorded interview, the defendant did not want to sell drugs; he intended to retain them for self-consumption.  Ms. MA submitted that the defendant, however, was unable to purchase the entire quantity; he could only pay for 1/3 of the ketamine for self-consumption, the price of which was within his financial ability.  Regarding the electronic scale, Ms. MA submitted that the defendant wanted to limit his in-take of ketamine, he therefore used the electronic scale to measure each dosage.

Sentence

Charge 1

8.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.

9.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 50 to 300 grammes, the sentence ranges from 6 to 9 years' imprisonment.

10.For the purpose of sentencing, I would disregard the methamphetamine and treat the defendant having trafficked in 65.30 grammes of ketamine.  For that quantity, the appropriate starting point is 6 years' imprisonment. I make it clear that I did not raise the starting point despite the fact that this is his 3^rd conviction of "drug trafficking".

11.Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles.[1] Although the defendant's explanation given for the present offence is far from being convincing, his conviction records do show that his drug addiction began as early as 2007 when he was 21.  In the absence of evidence to the contrary, his assertion that 1/3 of the ketamine was intended for self-consumption may be true.  I am prepared to reduce the sentence to 63 months[2] to reflect the discount for self-consumption.

12.Finally, a one-third discount is given for the guilty plea, reducing the sentence further to 42 months.   Apart from this, I see no other mitigating factors which warrant any further reduction.  The sentence for Charge 1 is 42 months' imprisonment.

Charge 2

13.I adopt a starting point of 3 months' imprisonment.  With the guilty plea, the sentence is reduced to 2 months.

14.Bearing in mind the totality principle, I order the sentence for Charge 2 to run concurrently with Charge 1.  The total prison term for both charges is 42 months.