HKSAR v. CHAN WING FAI

DCCC 910/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.910 OF 2012

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

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

Reasons for Sentence

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

1.  The defendant pleaded guilty to one charge of trafficking in dangerous drugs. Particulars of the charge are that the defendant trafficked in 20.79g of ketamine on 10^th August 2012 at On Leung Lane, Yuen Long.

Summary of facts

2.  In a Police operation at around 5:53pm on the charge date, Police tailed and then stopped a taxi that the defendant was in. A body search was conducted on the defendant and a black plastic bag which contained 2 plastic bags containing the dangerous drugs in question were found on the defendant.

Previous Convictions

3.  The defendant has 3 previous convictions, 2 of which were in 2012 for possession of dangerous drugs when he was sentenced to probation and fined $1,500 respectively.

Mitigation

4.  The defendant is 20 years old and living with his parents, younger brother and sister. He completed form 3 level education and then studied as the Institute for Vocational Education. He was last working as a casual delivery worker.

5.  Ms. Ho for the defendant submitted that half of the dangerous drugs found on the defendant was for his own consumption. The defendant would use ketamine 3 times per month, spending about $1,000 per month on drugs.

6.  Ms. Ho relies on the case of HKSAR v Chow Chun Sang (周俊生), CACC 135/2011 in support of her submission that if this court accepts that half of the ketamine was for the defendant’s own consumption, a 15% discount off of the original starting point should be given.

Sentencing Guidelines

7.  The applicable sentencing guidelines for trafficking in ketamine is found in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006 where the Court of Appeal indicated that the sentence after trial for trafficking between 10 to 50g of ketamine is that of 4 to 6 years’ imprisonment.

Sentence

8.  Although the defendant is 19 years old, since the offence of trafficking in dangerous drugs is an excepted offence under Schedule 3 of the Criminal Procedure Ordinance, Cap.221, s.109A of the same Ordinance does not apply, in other words,  imprisonment need not be the last resort when sentencing the defendant.

9.  While it is true that young age can be a mitigating factor in certain cases, in cases concerning serious charges such as trafficking in dangerous drugs, age will only be a mitigating factor if the defendant falls within the “extreme youth”  category, which is usually, say around 14 years old. The defendant is 19, he is not within this category and his age itself is not a mitigating factor in offences as serious as the ones that he has pleaded guilty to.

10.  I have heard from Ms. Ho’s mitigation on behalf of the defendant and find nothing in terms of personal circumstances that would allow me to depart from the sentencing guidelines.

11.  I have considered whether to sentence the defendant on the basis that half of the dangerous drugs in relation to the charge were, according to Ms. Ho, for the defendant’s own consumption.

12.  It must first of all be pointed out that the defendant had explicitly and specifically admitted in the summary of facts that was read out to him that the dangerous drugs found on him were for the purpose of trafficking.

13.  Nevertheless, there is nothing to stop the defendant from raising the point in his mitigation. I find that the defendant’s records of conviction tend to support this mitigating factor put forward. Without other evidence to contradict the defendant’s submission that half of the ketamine were meant for his own use, I will sentence the defendant on the facts that are most favourable to him.

14.  For the amount of ketamine involved, I will adopt an initial starting point of 57 months’ imprisonment, which is in accordance with the guideline sentence. From this initial starting point, I will apply a discount of around 10% for the defendant’s claim that half of the dangerous drugs were to be for his own consumption, bringing the starting point down to that of 50 months’ imprisonment.  I will then grant the defendant the full one third discount and sentence him to 33 months’ imprisonment.