HKSAR v. WONG CHEUK WAI AND ANOTHER

DCCC 804/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 804 OF 2016

----------------------

----------------------

--------------------------------

Reasons for Sentence

--------------------------------

1.  In this case, both defendants have pleaded guilty to a single charge of trafficking in a dangerous drug.

2.  The drug concerned is ketamine, and the narcotic content of that total of ketamine is 30.2 grammes.

3.  The defendants have agreed the facts of the case, which are set out in a summary that has been put before the court.  The summary shows that the defendants were stopped and searched by police in premises in Prince Edward Road in Mong Kok and drugs were found on them.

4.  As far as the 1st defendant is concerned, at the time of his arrest, a total of 32.7 grammes of a powder which contained 30.6 grammes of ketamine were found on him, and as far as the 2nd defendant is concerned, after he was searched, a total of 35 grammes of a powder containing 16.6 grammes of ketamine was found inside his right front pocket.  Those sums added together are the total of 30.2 grammes of ketamine found in the charge, and the defendants, by their plea of guilty, accept the facts, accept that they were each or both in possession for the purposes of trafficking of all of the drugs found on both of them, and that is set out in the remaining part of the Summary of Facts which contains the admissions made by the defendants about the way in which the drugs would be dealt with.

5.  The 1st defendant, when he was interviewed, made admissions under caution.  He said that he had been approached by an unknown male in a playground and asked if he was willing to sell ketamine.  He was told to come back on the following day.  On the following day, the male gave him two plastic bags which contained ketamine.  The defendant told this male he was going to sell the ketamine on the 5th floor of a premises called Moko, which is where the defendants were found.

6.  He met the 2nd defendant while he was on his way to Moko, and passed one of the bags of ketamine to him, and promised to pay him as a reward.  So the 2nd defendant at that point, according to the 1st defendant, involved himself in the decision to sell the drugs.

7.  The 2nd defendant said that he knew and was aware of the 1st defendant, and he had been approached by him to make money in Moko, and when they arrived at Moko, the 1st defendant had put a bag containing ketamine in his pocket and promised to pay him a reward of $1,000 if all the ketamine was sold.

8.  The value of the ketamine seized from both defendants was about $8,868, and the defendants both admit they were in possession of that ketamine seized from them for the purpose of trafficking in it.

9.  The defendants’ antecedents show that they are both young men.  The 1st defendant is currently aged 20, as is the 2nd defendant, and of importance in this case is that the defendants are both of clear record.

10.  The 1st defendant’s antecedents show that he is married, with a daughter, and the 2nd defendant’s show that he is single.

11.  Given the fact that both men are young and both men are of clear record, I obtained background reports on them, because their lack of involvement in the criminal process before this date is of course a factor that is important in sentencing.

12.  The 1st defendant is said to have been raised in a harmonious family with care and guidance.  He joined the workforce at the age of 18 and married in December 2015, a son being born in September of that year.  He had tried hard to support his family, but he had faced serious financial problems, and as a result had accepted an offer from a stranger which led to the commission of this offence.  I am told he is regretful of committing this offence, he is remorseful, and seeks a lenient sentence.

13.  As far as the 2nd defendant is concerned, the conclusion of the report in his case is somewhat more detailed.  The defendant had what is described as limited abilities in academic pursuits, which arise somewhat from his having a condition known as dyslexia.  He again had limited abilities in academic pursuits and quit school on completing Form F5 in early 2014.  He managed to maintain a regular employment pattern thereafter until 2016, when he left his job.  The defendant again is remorseful.  He says he committed the offence out of greed, and asks for leniency and early discharge from prison.

14.  It would appear that neither of the defendants, from what I can see in the reports, are drug addicts or drug consumers.  They seem to have taken it upon them to engage in this activity in order to raise some money.

15.  It is unfortunate to see young men of this kind of background committing these offences, and given their age and lack of criminal involvement, I believe it is fair to say that these offences are somewhat out of character for both the defendants.

16.  As far as the sentence is concerned, they have involved themselves in a serious offence.  The offence of trafficking in a dangerous drug is a serious matter.  They are trafficking in a major hard drug for which there are guideline sentences.  The narcotic quantity of the drug in this case is 30.2 grammes of ketamine, which puts the quantity within the guideline of 10 to 50 grammes of ketamine, which is a sentence that will range between 4 to 6 years’ imprisonment.  So the guideline sentence sets out a substantial period of imprisonment for the possession of these drugs for the purpose of trafficking.

17.  As far as the quantity is concerned, it would lie somewhere towards the middle of that guideline.  Generally, when guideline sentences are imposed, the courts look at the quantity of drug and posit the sentence based on that.  That is in order to maintain consistency of sentencing.

18.  In this case, I have to decide, as far as these defendants are concerned, where on that particular guideline the starting point for sentence should fall.  Naturally, there is the mathematical calculation one can make as to that, but also there are other factors that I should consider, namely their lack of involvement in criminal activity before, their young ages, and also their role in this particular offence, where they are recruited to distribute the drug.  Along with being a courier, that is probably the lowest level of involvement in an offence of drug trafficking.

19.  I believe it is right in this case to give some credit when determining the starting point for sentence to the defendants’ young age and previous clear records.  What I will do is take a starting point that is towards the lower end of the particular guideline for this quantity of drugs, and I shall take a starting point for sentence at 51 months’ imprisonment for each defendant.

20.  They are both entitled to a one‑third discount from that, and that will leave a sentence of 34 months’ imprisonment for each defendant on this charge.