HKSAR v. TANG KA KUI

DCCC 412/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 412 OF 2012

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs". The dangerous drugs involved are ketamine and cocaine.

2.  About 11:30 am on 20 March 2012, PC 3607 (PW1) saw the defendant coming out from Room 433, Kam Hon House, Choi Hung Estate (the Flat).  PW1 stopped the defendant outside the Flat for investigation.

3.  Upon search, PW1 found 3 plastic bags of suspected dangerous drugs (collectively Exhibit 1) in the right front pocket of the defendant's trousers.  Under caution, the defendant admitted that Exhibit 1 contained ketamine and cocaine.  He also admitted that "Ah Keung" instructed him to deliver Exhibit 1 to "Ah Hing".  However, the defendant had not yet received his reward of $500 from Ah Keung.

4.  In his cautioned interview, the defendant admitted that he met Ah Keung on 17 March 2012.  Ah Keung invited him to be a courier of dangerous drugs and he agreed.  On 18 March, Ah Keung instructed the defendant to retrieve Exhibit 1 from a bush near the Ground Floor of the defendant's residence.  The defendant was still waiting for further instructions to deliver Exhibit 1 to Ah Hing.

5.  Exhibit 1 was later found to contain:  1 plastic bag which contained 10.05 grammes of a powder containing 6.64 grammes of ketamine; 1 plastic bag which contained 12.52 grammes of a powder containing 8.46 grammes of ketamine; and 1 plastic bag which contained 15.08 grammes of a solid containing 9.69 grammes of cocaine. 

6.  The defendant is now 22 and has 3 conviction records (all related to theft and those offences were committed during the defendant's early teenage years).  He is single and resides with his mother and siblings in a public housing unit.  The defendant's father passed away when the defendant was 5.  Prior to the present offence, the defendant was a lorry attendant earning $9,500 per month.

7.  Defence lawyer Mr. TSE informed me that the defendant all along had gainful employment since he left school.  He is a filial son and makes regular contribution to support his mother. Unfortunately, the defendant was made redundant by his employer in January this year.  At the time of offence in March, the defendant was unemployed and had no money.

8.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.  I cannot stress this enough. Furthermore, 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) and cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370).  For 10 to 50 grammes of ketamine, the sentence ranges from 4 to 6 years' imprisonment.  For up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years' imprisonment. 

10.  In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v YIP Wai-yin & another CACC 80/2003 and HKSAR v CHENG Yat-ming CACC 455/2006.

11.  The defendant trafficked in a cocktail of drugs consisting of 14.92 grammes of ketamine and 9.69 grammes of cocaine.  For 14.92 grammes of ketamine, the appropriate starting point is 4 years.  For 9.69 grammes of cocaine, the appropriate starting point is 5 years.  In the present case, had the whole quantity of the cocktail been the more serious drug (i.e. 24.61 grammes of cocaine), the starting point would have been 6 years.  Based on the nature and quantities of the cocktail components, instead of simply adding 4 years onto 5 years, I consider that the "combined" approach would arrive at a realistic and fair sentence. 

12.  To adequately and accurately reflect the seriousness of the drugs involved as well as the more potent and harmful effect of a cocktail drug, I adopt a starting point of 6.5 years' imprisonment.  One-third discount is given for the guilty plea, reducing the sentence to 52 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence I pass is 4 years and 4 months.