HKSAR v. MAN WAI KIT

DCCC 835/2017

[2018] HKDC 572

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 835 OF 2017

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REASONS FOR SENTENCE

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1.  Defendant faced a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and another charge of possession of poison included in Part I of the Poisons List, contrary to section 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap 138. He pleaded guilty to both charges and was so convicted.

2.  According to the agreed Summary of Facts, on 31 May 2017 at around 8:26 pm, defendant was intercepted at the Customs Arrival Hall at Lo Wu Control Point, New Territories, Hong Kong after he had passed through the green channel without making any declaration to members of the Customs and Excise Service.

3.  Upon search of the defendant, following items were found in the false compartment of his black shoulder bag:-

(a) three plastic bags containing altogether 45.3 grammes of powder containing a total of 29.55 grammes of ketamine;

(b) one foil pack containing 9 tablets containing 0.08 grammes of nimetazepam;

(c) one foil pack containing 2 capsules containing tramadol (a listed Part I poison).

4.  Defendant was arrested and under caution, he admitted the shoulder bag belonged to him and that his friend asked him to deliver the shoulder bag from Shenzhen to him in Mongkok.

5.  He confirmed in a video-recorded interview that:-

(a) the shoulder bag belonged to him;

(b) the drugs in question were found in the shoulder bag;

(c) his friend asked him to deliver the goods in the shoulder bag from Shenzhen to Mongkok;

(d) he was not aware if his friend would pay him;

(e) he was not aware of what goods his friend actually placed in the shoulder bag;

(f) this is the first time his friend asked him to deliver goods from mainland to Hong Kong.

(g) The tramadol pills were used by him as a painkiller for his injured hand condition and that the same was previously prescribed to his mother by a doctor.

6.  It is agreed that the street value of the ketamine seized and the tramadol seized were respectively $11,959.2-HKD and $10-HKD respectively, and that the defendant possessed the ketamine, the nimetazepam and tramadol seized and that he possessed the former two drugs for the purpose of trafficking and that he knew that the tramadol is a listed Part I poison.

Record and Mitigation

7.  Defendant has 9 previous convictions of which 7 are related to drugs, 2 are trafficking in dangerous drug convictions.  The last one being in year 2012 and the defendant was sent to prison for 3 years.

8.  It was said on behalf of the defendant that he is aged 32, single, living with his parents and two siblings.

9.  The defendant worked in a petrol station, earning $13,000-HKD per month and he contributed $2,000 to $3,000-HKD per month to his family.

10.  It was also said that the defendant was a drug addict since he was 14 years old and that this time he really wanted to quit the drug habit and wanted to start afresh. 

11.  He has written a letter to this court, evincing his intention and determination to start afresh.

Discussion

12.  I have considered all that was being said on behalf of the defendant by Miss Chong.

13.  Trafficking in dangerous drugs is a very serious offence and, generally, personal background and reasons for commission of offence do not serve as valid mitigating ground. 

14.  For the 1st charge, the amount of drugs involved are 29.55 grammes of ketamine and 0.08 grammes of nimetazepam.

15.  The tariff for sentence after trial for trafficking in this amount of ketamine alone, according to the case of Secretary for Justice v Hii Siew Cheng, CAAR 7/2006, is very much slightly less than 5 years.  

16.  The amount of nimetazepam in this case is very small, being 0.08 grammes, and treating the same as if they were also ketamine[1]. This court is prepared to adopt the same sentencing starting point.  So the tariff for sentence remains at 5 years undisturbed.

17.  As the quantity of this nimetazepam is very small, I am not going to enhance the sentencing starting point by reason that there is more than one dangerous drug available for trafficking[2].

18.  The defendant had two previous similar convictions in year 2010 and year 2012.  He was sentenced to 3 years’ imprisonment by the court in year 2012. This court noted that he was also convicted of another charge of possession of dangerous drugs on the same day.  This helps to support defendant’s contention that he was himself a drug addict and had committed the offence to support his drug addiction habit.  But for the fact that there is a small time lag between his release and his commission of the present offences, I would have enhanced his sentencing starting point.  In this case, I am not going to do so.

19.  Defendant has pleaded guilty and is entitled to full one-third discount in sentencing. 

20.  For the 1st charge, he is sentenced to 3 years and 4 months.

21.  For the 2nd charge, defendant is in possession of two tablets of tramadol, said to have obtained these tablets from his mother to relieve the pain from his hand injury.  Considering the small number of tablets involved and the reason of his possession of the same, he is sentenced to 2 days’ imprisonment, and this sentence is to be served concurrently to the sentence in Charge 1.