HKSAR v. YIP NGA TIK

DCCC1101/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1101 OF 2011

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two charges. Charge 1, trafficking in 9.36 grammes of cocaine and Charge 2 possession of 6.60 grammes of ketamine.

2.  The facts are that the defendant was intercepted by police officers on a street at 10.44 pm.  The police found 52 packets of powder inside the defendant’s plastic bag.  This was subsequently proven to be 13.43 grammes of powder containing 9.36 grammes of cocaine. 

3.  The defendant was arrested and cautioned.  Under caution, the defendant admitted that the powder was cocaine.  He had purchased it from Ah Fai that afternoon.  Thereafter, he had weighed it and divided the drugs into the 52 packets within the intention of selling them to his friends for a profit. 

4.  He also told the police he had ketamine at home.  Upon search of the defendant’s home, the police found two further packets of drugs.  This was subsequently proven to be a total of 8.52 grammes of powder containing 6.60 grammes of ketamine.  There were also some electric scales, 120 empty packets and $12,800 in a drawer in the defendant’s bedroom. 

5.  Under further caution, the defendant stated that the ketamine, the scales and the plastic bags were supplied by Ah Fai and the ketamine was for his own consumption.  In a subsequent record of interview, he repeated the same answers and he further told the police that he had purchased the cocaine, the plastic bags and the scales for $17,000 and the ketamine was a gift.

The defendant’s record

6.  The defendant has two previous records both dated 2000 and unrelated to drugs.  I have already indicted that I was prepared to treat the defendant has someone with a clear record.

Mitigation

7.  Counsel submitted that the defendant had committed the Charge 1 because of financial pressure.  Three letters of mitigation were submitted.  He had descried as a filial and hard working young man.  His mother worked in a construction site and had previously been injured. The defendant had always wanted to be able to support his mother, so that she could leave her high risk job. 

8.  He quit working as a garage mechanic to open a small grocery store but ended up in debt of $180,000.  He could not cope with the financial pressure and began mixing with a dubious crowd.  He started to take ketamine and eventually decided to sell drugs for quick money.

Reason for sentence

9.  I have carefully considered the facts and mitigation put forward on behalf of the defendant.  Apart from his cooperation with the police and his guilty plea, there are no real mitigating factors. 

10.  Trafficking in dangerous drugs is a very serious offence and there are sentencing guidelines.  Cocaine is a hard drug and is equated with heroin.  The guideline for up to 10 grammes of cocaine is 2 to 5 years’ imprisonment. 

11.  The defendant was selling the drugs for profit. I have grave doubts as to his allegation that the commission of this offence was due to financial pressure.  According to him, he bought the cocaine for $17,000.  He had a further $12,800 in his drawer.  In other words, he had almost $30,000 in cash in hand on the day of his arrest. 

12.  The amount of narcotics involved is close to 10 grammes.  For Charge 1, I adopt a starting point of 5 years’ imprisonment. I give the defendant full credit for his guilty plea. The sentence is reduced to 40 months.        

13.  As for Charge 2, there is no dispute that the amount of drugs found was sufficient for about 48 doses for an average consumer.  Counsel submitted that the defendant was a regular user of ketamine and the latent risk was insignificant.  I disagreed.

14.  According to mitigation the defendant’s friends are drugs users and the defendant was selling drugs as a result of financial pressure, there was every possibility that at least part of these drugs may pass into the hands of other.  The latent risk was significant. 

15.  I adopt the sentencing approach in Mok Cho Tik CA165/2000 and Ho Ka Kei CA378/2009.  I adopt a starting point of 9 months.  That starting point is increased by a further 3 months for latent risk.  This makes a total starting point of 12 months.  I give full credit for the defendant’s guilty plea.  The sentence is reduced to 8 months. 

16.  Two lots of different drugs were found in two different places.  The sentences should be consecutive.  However, I have to consider the totality.  I order that 4 months of the sentence for Charge 2 to run consecutively with Charge 1, that make a total sentence of 44 months.