HKSAR v. FAN KAI CHI

DCCC 636/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 636 OF 2013

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of trafficking in 0.05 gramme of a powder containing cocaine; 5.08 grammes of a solid containing 4.02 grammes of cocaine and 5.37 grammes of a solid containing 4.06 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2.  In summary shortly before 4 a.m. on the 24 February this year the defendant together with his friend passed through Hong Kong Immigration at the Departure Hall of the Macau Ferry Terminal.  About 20 minutes later after his friend had been intercepted by Immigration Officers the defendant decided not to continue his journey to Macau. 

3.  After cancelling his departure the defendant waited in the Departure Hall where he was intercepted by the police.  The police found the small quantity of cocaine folded in a $20 banknote from the right front pocket of the defendant’s trousers and two plastic bags containing the larger quantity of cocaine and the ketamine from his right shoe.  Under caution the defendant said that he had bought the drugs that night and was taking them to Macau for his own consumption and for the consumption of his friend. 

4.  In Secretary for Justice v Hii Siew Cheng[2008] 3 HKC 325 the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 1 and 10 grammes sentence after trial falls within the range of 2-4 years imprisonment.

5.  The courts have equated for sentencing purposes cocaine with heroin (seeAttorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).  InR v Lau Tak Ming[1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years imprisonment. 

6.  The defendant is only 20. Section 109A of the Criminal Procedure Ordinance, Chapter 221 provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  Whilst this provision does not apply to trafficking in a dangerous drug, which is an excepted offence, a court must exercise great care before committing a young offender to prison. 

7.  I therefore called for a Training Centre suitability report to provide me with further information about the defendant, warning the defendant that even if training centre was recommended this did not mean I was going to impose a training centre order.  The appeal courts have made clear that save in very rare cases a training centre order should not be imposed for trafficking in substantial quantities of dangerous drugs (see for example Secretary for Justice v Ko Fei Tat [2002] 4 HKC 59).

8.  I have carefully considered everything said by Mr Kwan on behalf of the defendant.  Although the defendant cannot be said to be of extreme youth I take into account his young age and that he has no previous convictions. 

9.  The report reveals that after leaving school in 2010 the defendant commenced his working life.  His last job was as a warehouse worker earning $9,000 per month.   However this lasted only three months the defendant being dismissed because he was always late to work.  This was in January this year since which time the defendant has remained jobless.

10.  The defendant joined the “Shui Fong” triad society in order to seek recognition from his like-minded peers.  Out of curiosity in February this year the defendant says he was tempted to take cocaine and ketamine.  The defendant said he only took ketamine once and consumed cocaine twice a week and was not addicted to drugs which he took whenever he had fun with his friends.  Mr Kwan adds that it was the defendant’s association with triad peers which led him to trying dangerous drugs.

11.  The Rehabilitation Assessment Officer is of the opinion that in order to help the defendant develop more insight into his problems a period of disciplinary training coupled with statutory supervision would be beneficial to him.  The defendant asks to be sent to the Training Centre.

12.  After very careful consideration I am satisfied this is not one of those very rare cases where training centre would be appropriate.  Whilst just over 4 grammes of both cocaine and ketamine cannot be said to be a very large quantity such quantity nevertheless attracts a substantial term of imprisonment.  Notwithstanding the defendant’s young age I am satisfied there are no exceptional circumstances warranting departure from the guidelines. 

13.  Adopting the ‘individual’ approach based on quantity alone the starting point for trafficking in the cocaine would be no more than 3 years imprisonment and the ketamine would be no more than 2 years and           9 months imprisonment.  This would result in a starting point of no more than 5 years and 9 months imprisonment, which clearly is excessive for if all the drugs were cocaine the likely starting point based on quantity alone would be no more than 4 years and 6 months imprisonment. 

14.  The ‘combined’ approach to sentence is therefore appropriate.  Whilst the most potent drug is cocaine sentence must reflect there was an equal amount of ketamine.  I am satisfied based on quantity alone a starting point of 4 years imprisonment is appropriate. 

15.  The defendant says the ketamine was for his own consumption and for the consumption of his friend, who is a 15 year old boy.  Mr Kwan informs the court prior to arrest the defendant had only taken drugs once.  This is a different to what he told the Rehabilitation Assessment Officer that he took cocaine twice a week in the month of February. 

16.  Notwithstanding the defendant gave the same explanation to the police when interviewed on video I do not accept having only taken ketamine once and cocaine for a short time that the defendant would buy 4 grammes of both ketamine and cocaine. 

17.  Nor do I accept that some of the drugs were for consumption by his friend, who was also found in possession of 18.29 grammes of cocaine.  Even if some of the drugs were for the consumption of his friend the supply of drugs to a 15 year old is a significant aggravating feature. 

18.  I am however prepared to accept that the small amount of cocaine folded up in the banknote may have been for the defendant’s own consumption. 

19.  Having indicated that I do not accept the mitigation the cocaine and ketamine found in the defendant’s shoe was for his own consumption and for the consumption of his friend the defendant has chosen not to give evidence in support of this mitigation.  I therefore proceed to sentence on the basis all but the small amount of cocaine was for trafficking. 

20.  Having considered the decision in HKSAR v. Wong Suet Hau [2002] 1 HKLRD 69 in particular paragraphs 33 and 34 I am satisfied the small amount of cocaine for own use makes no difference to sentence.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 yearsand 8 months imprisonment.