HKSAR v. WAKUI KENSHIN

DCCC 1052/2017

[2018] HKDC 606

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1052 OF 2017

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REASONS FOR SENTENCE

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1.  This is a case of police stop and search in the street leading to the discovery of drugs.

2.  The defendant, a 28-year-old man, pleaded guilty to one count of trafficking in two kinds of drug - they are 53.52 grammes of powder containing 32.74 grammes of ketamine and 3.46 grammes of solid containing 3.14 grammes of cocaine.   

3.  The prosecution case is quite straightforward. In the evening on 14 August 2017, plainclothes officers patrolling in the Tsuen Wan West MTR station spotted the defendant acting suspiciously – looking around nervously and appearing to be in a hurry, they then approached him for questioning, the defendant took to his heels but was soon subdued by the officers.

4.  In his right front trousers pocket, officers found a single packet of drugs, i.e. 2.62 grammes of powder containing 1.84 grammes of ketamine, which was put in a bag of tissue. The defendant told the officers that it was for his own consumption.

5.  Back to the police station where a more thorough search was conducted, the officers found much more drugs on the defendant hidden underneath his underwear – 50.9 grammes powder containing 30.9 grammes of ketamine in 12 resealable plastic bags in a brown paper bag and 3.46 grammes of solid containing 3.14 grammes of cocaine in 17 plastic bags wrapped by a piece of tissue.

6.  Also found on him are two mobile phones and some cash, HK$ 5,622.80, Renminbi $613 and 20 pounds sterling.

7.  The total street value of the seized drugs is estimated to be about $25,716.

8.  A subsequent house search of the defendant’s residence in Tuen Mun revealed no contraband.

9.  In the interview with the police, the defendant said that he bought the drugs from an unknown male about half a year ago for $20,000. In regard to the cash, he said around $5,000 was his income from part-time work. He became a drug addict six months ago but he did not have a regular daily dosage.

10.  The defendant, a casual construction site worker, has no prior convictions. He lived with his parents and a younger brother in a public housing unit in Tuen Mun.

11.  The court heard that the defendant started business in frozen meat some years ago but the business failed and the defendant ended up with an outstanding debt of $200,000. To make matter worse, he got acquainted with some bad peers, who came to know about his debt problem, offered him free drugs as well as easy job to make quick money.

12.  A person called “Ah Man” offered the defendant the job of a drug courier for a reward of $20,000; but before he could deliver the drugs to another, he was arrested by the police. “The defendant had not received anything financially”, counsel said.

13.  In his letter to the court, the defendant expressed remorse for what he had done, and how he found his goals in life from his bitter incarceration experience. Counsel said that the defendant had in fact made very good use of his time in custody by completing a course and obtaining a certificate in Learning English through Travelling. He would further his study after release from prison to become a tourist guide.

14.  While in remand, counsel said that the defendant had given his past some serious thought and drawn up plans about his future. The defendant had declined to have the visits in prison from those who had introduced him to drugs for he was determined to stay away from his bad influence. With the help of his family, the defendant is confident that he would keep on the straight and narrow.    

15.  The defendant was tested positive for cannabis after being taken into custody, but counsel went on to say the defendant also abused other drugs such as ketamine and cocaine. Notwithstanding this, it was not the defence case that part of the drugs was for the defendant’s own consumption.

16.  Trafficking is a heinous crime; it hardly needs telling the kind of harm it can bring to the society as a whole. The courts have always been tough on drugs, especially on those who engage in drug dealings. The courts have said time and again that even for a young and first offender, it  does not constitute substantial mitigating factor.

17.  In a case where trafficking involved in more than one kind of drug like the instant case – cocaine as well as ketamine, there are a number of different approaches to sentencing, but whichever approach one adopts, be it individual, combined or conversion, the end result should more or less be the same.

18.  Here I’d adopt the conversion approach as stipulated in Wong Kin Kau CACC 269/2009. The narcotic contents of the two drugs in the instant case are 32.74 grammes of ketamine and 3.14 grammes of cocaine.

19.  The guideline for trafficking between 10 grammes and 50 grammes of ketamine is one of 4 to 6 years; while trafficking up to 10 grammes of cocaine is 2 to 5 years.

20.  Based on such guidelines, one would look at 61 months for 32.74 grammes of ketamine and 35 months for 3.14 grammes of cocaine.

21.  Using the conversion approach, one can see that 3.14 grammes of cocaine carries roughly the same sentence as 5 grammes of ketamine. The guideline for trafficking 1 gramme to 10 grammes of ketamine is one of 2 to 4 years, so 5 grammes would attract approximately 35 months which is roughly the same as 3.14 grammes of cocaine.  

22.  If I adopt the conversion approach, convert cocaine into ketamine, then the aggregate amount of ketamine would then be increased by about 5 grammes more, the total weight would therefore become 37.74 grammes which would attract a sentence of 64 months.

23.  It is worth noting that in Wong’s case, the Court of Appeal also talked about enhancement of sentence as a result of taking into account the potential of mixing the drugs into a cocktail to enhance their potency; it is the potential not the actual mixing that counts, the court emphasized.

24.  In the last sentence of paragraph 11 of the judgment, the Court said “there is no evidence that they had been mixed into a cocktail to enhance their potency. But the potential is there and it is something we may take into account.”   

25.  In the Wong’s case, the bulk of the drugs are 300 grammes of ketamine and 56.7 grammes of ice, the Appellate Court took the view that a 1½ years enhancement was appropriate for the potential factor.

26.  In our case, I am mindful of the fact that the drugs involved (Ketamine and cocaine) are different from those in Wong’s case (ketamine and ice), but I think the potential is still there. Taking into account the lesser quantity comparing to Wong’s case, I give a 3-month enhancement which takes the starting point up to 67 months.

27.  Insofar as his mitigation is concerned, apart from his guilty plea, there is nothing of substance. His plea is timely, so he is entitled to a full one-third discount. Giving the appropriate discount, the starting point is reduced to 44 months.

28.  There being nothing to justify any further reduction, the defendant is therefore sentenced to 44 months’ imprisonment.