HKSAR v. LAM KA HAI

DCCC 534/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 534 OF 2015

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HKSAR
v
Lam Ka-hai

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Before: Deputy District Judge E Lin

Date: 31 August 2015 at 10.04 am

Present: Mr Paddy LAW, PP of the Department of Justice, for HKSAR
Mr WONG Chung-ping, Patrick, of Cheng & Wong, assigned by the Director of Legal Aid, for the defendant

Offence: Trafficking in a dangerous drug (販運危險藥物)

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Reasons for Sentence

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1. In this case, the defendant, Lam Ka-hai, faces one count of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He is convicted upon his plea and admission of facts.

Facts

2. At about 8 pm on 1 April 2015, police officers intercepted the defendant in Tuen Mun during an anti-dangerous drugs operation. From the plastic bag he was holding in his hand, the police officers found 243 grammes of a powder. It was confirmed later that itcontained 104 grammes of ketamine.

3. Upon arrest and caution, the defendant admitted he knew the bag he was carrying was dangerous drugs and that he was delivering itfor a reward of $500. The street value of the ketamine seized was about HK$31,412.

4. During a video-recorded interview in the presence of his mother, the defendant explained that he was asked by a woman he met inan internet café to take the dangerous drugs from Lung Kwu Tan to another place. He agreed because he was unemployed and he wasgreedy.

Discussions

5. It is commonly accepted that trafficking in dangerous drugs is an offence that corrupts the very fabric of the society. It hasbeen so rampant that the Court of Appeal has set out very clear sentencing guidelines for trafficking in different kinds of dangerousdrugs. As a rule, those convicted of the offence would expect an immediate custodial sentence the length of which would be proportionateto the quantity and the harm of the drugs involved.

6. Both the prosecution and defence agree that the applicable guideline for trafficking in ketamine can be found in the judgment ofHii Siew Cheng[1].

7. The present case falls within the bracket of 50 to 300 grammes and warrants imprisonment of 6 to 9 years.

8. I do not see any reason in this case to depart from the guideline. I will therefore adopt 6½ years (ie 78 months) as a startingpoint.

Mitigation

9. The defendant was born on 8 September 1997. He was 17 at the time he committed the offence. He had a clear record until 2014,when in the same year he had on two occasions been convicted of a total of three counts of shoplifting charges. He was first finedand then ordered to serve Community Services Order.

10. According to defence counsel, the defendant came from a broken family. He was a victim to domestic violence inflicted by his father,and also bore witness to the violence from his father to his mother. Although the divorce of his parents has put an end to such torment,the unpleasant experience had a disruptive effect to his life.

11. Normally, for sentencing young offenders, this court would adopt a rehabilitative approach to ensure that one’s youthful indiscretionwould not mar the rest of his life. That is why section 129A of the Criminal Procedure Ordinance, Cap 221, specifically states that a court in sentencing must first consider all other options, and imprisonment should be the lastresort when all other options are not feasible.

12. However, for serious offences such as trafficking in a dangerous drug, the need for deterrence outweighs other considerations, ashas been pointed out by Yeung VP in the case of Chau Tse Tim[2],:

“29. Drug trafficking is an evil business, and the courts have repeatedly emphasised that whoever carries on such an evil business,irrespective of his/her background or in the circumstances in which the offences are committed, can expect no mercy, otherwise theaged, the young or the crippled would be encouraged to take part.

“30. Young age is very often a mitigating factor, particularly in trivial offences, and it is generally considered more importantto rehabilitate a young offender than to severely punish him as a deterrent. There is also no doubt that the court must exercisegreat care before committing young offenders to prison.

“31. However, we are dealing with serious drug‑trafficking offences in respect of which offences the courts have said that thepublic interest requires the deterrence of other potential offenders must take precedence over the rehabilitation of a particularoffender before it. It is therefore not in the interest of the community to sentence even young offenders of serious drug‑traffickingoffences to a training centre.”

13. In the Chau Tse Tim case, the Court of Appeal accepts that although Training Centre is not a soft option, a period of detention there does not commensuratethe gravity of the offence which requires a much longer term of imprisonment.

14. For this reason, although I have seen fit to call for a Background Report, Detention Centre and Training Centre Reports before sentencing,it is primarily for the purpose of finding any special reason which may justify exceptional leniency, and is not indicative of thecourt’s inclination to depart from the norm.

15. The probation officer set out in great detail the defendant’s history, as did the intake officer of the Correctional ServicesDepartment. I note that he is considered suitable to be admitted to both Detention Centre and Training Centre. Yet, at 17, thedefendant does not fall into the “extreme youth” category. From the reports I also do not find any exceptional circumstanceswhich may justify my departure from the sentencing guidelines and principles enunciated above.

16. The only valid mitigation, in my view, is his plea of guilty. I will therefore reduce the sentence from the starting point of 78months to that of 52 months.

17. Having reviewed his circumstances, I do not see any other reason which would justify my further exercise of leniency.

( E. Lin )
Deputy District Judge

[1] [2009] HKLRD 1, [2008] HKEC 940, CARR 7/2006, CACC 126/2007, 6 June 2008

[2] Secretary for Justice v Chau Tse Tim [2015] 1 HKLRD 853, 29