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DCCC 843/2014
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 843 OF 2014
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| Before: |
Deputy District Judge Neil Mitchell |
| Date: |
7 November 2014 at 10:00 am |
| Present: |
Mr Simon Tso, Senior Government Counsel, of the Department of Justice, for HKSAR
Mr Fung Kwong Chi, Duncan, instructed by Bernard Wong & Co, assigned by the Director of Legal Aid, for defendant |
| Offence: |
Trafficking in dangerous drug(販運危險藥物) |
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REASONS FOR SENTENCE
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1. The defendant has pleaded guilty to one charge of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134.
2. The drug in question is ketamine and the quantity is 19.10 grammes of a powder containing 13.60 grammes of ketamine.
3. The summary of facts admitted by the defendant state that on the 4 August 2014 the defendant was acting furtively outside the ground floor of King Lai House Shan King Estate Tuen Mun. She was intercepted by PC 8682 and upon search the bag containing the dangerous drugs was found in her left front trouser pocket.
4. The defendant was arrested and under caution said she would only sell the drugs to her friends.
5. Cash of $3,188.40 and RMB100 and one mobile telephone was found on the defendant.
6. There is nothing in the facts which show any correlation between the mobile telephone and the act of trafficking in the drugs. Telephone messages whether by SMS or other media are usually stored on the telephone even if the user has attempted to delete them and such messages may indicate when and in what circumstances an arrested person acquired the drugs and what was the intended use. I often find in drug trafficking cases this simple source of potential evidence is either overlooked or ignored when such evidence particularly in a contested case may be very probative.
7. The value of the drugs seized was estimated at $2,407.
8. Prior to hearing mitigation the question of whether a Newton hearing was necessary was raised. This was in light of the claim by the defendant part of the drugs were for her own consumption.
9. However Mr Fung appearing for the defendant accepted even if part of the drugs were for her own consumption the quantity so used would not reduce the overall narcotic amount intended to be trafficked below 10 grammes.
10. Mr Tso on behalf of the prosecution accepted that part of the drugs may have been for the defendant’s own consumption but this concession was made on the basis the amount so used would not exceed 2 grammes.
11. The defendant has one previous conviction for possession of dangerous drugs which was on the 19 October 2012 and she was fined $2,000.
12. I was informed this conviction related to possession of ketamine and it shows the defendant does have a history of ketamine abuse.
13. Generally where a significant proportion of the drugs were for own consumption an adjustment may be made in the sentence to reflect that fact.
14. The guideline sentences for trafficking in ketamine were set out by the Court of Appeal in Secretary for Justice & Anor v Hii Siew Cheng & Anor [2008] 3 HKC 323.
15. For quantities of between 10 and 50 grammes a sentence of between 4 to 6 years after trial is appropriate.
16. In the light of the stance taken that the quantity to be used by the defendant for self consumption would not in any event reduce the amount to be trafficked below 10 grammes and given the proportion intended for self consumption was not a significant proportion of the overall quantity neither party sought a Newton hearing and the Court decided such a hearing was unnecessary.
17. Mr Fung in mitigation said the defendant was 27 years old born in Hong Kong. She lives with her mother and has an elder brother who is member of the disciplined forces. Mr Fung said the present conviction will affect the brother’s prospects for promotion. Even if that is the case the defendant should have thought of the consequences to her brother of her actions before going on to commit the offence.
18. The defendant’s parents were divorced in 2005. The defendant was not a high achiever academically at school but she did excel at volleyball. After completing form 5 she left school and assisted her mother in running a small cooked meat shop in Tuen Mun. It was during this period she became mixed up with bad peers who introduced her to ketamine and she became an addict.
19. In May 2014 she decided to set up a cosmetics retail shop with a friend but as result of her arrest for the present offence in August this plan has now fallen by the wayside. Again the defendant should have thought of the potential consequences to her business enterprise before committing this offence.
20. I am told on the night in question the defendant was going to attend a party. She purchased the ketamine for $800 although the street value according to the summary of facts is $2,407. She did not know how many people would attend this party but the drugs were to be shared among the party goers including the defendant.
21. Mr Fung points out the drugs were found in one bag and no smaller bags were found on her person or during a house search. Further no scales were found at her home and this all points to the fact she was not a professional trafficker selling drugs on the street.
22. In HKSAR v Chong Heung Sang [2010] 3 HKC 88 Tang VP of the Court of Appeal quoted what Stuart-Moore VP had said in the Hii Siew Cheng appeal namely:-
“In our opinion, while some of the social or non commercial trafficking cases involving small quantities of drugs can properly be regarded, when all circumstances are examined, as falling into the lower end of the sentencing scale applicable to the dangerous drugs in question, we are firmly of the view that this factor should not, in itself, provide a general basis for imposing a lighter sentence, than would be imposed for commercial trafficking. The friend who starts off or perpetuates another’s abuse of drugs, is as dangerous to the community as the commercial supplier of small quantities, who will generally traffic in drugs with those already addicted”.
23. This is all the more pertinent in this case since the defendant did not seemingly know how many were going to be at this party which suggests that some or all of the other attendees were either strangers or not close friends.
24. A number of letters were handed to the court including one from the brother, one from the defendant’s mother and one from the defendant. There was also a letter from Rev Renzo Milanese of the Holy Redeemer Church.
25. What the mitigation and the letters show is that despite the defendant’s under achievement academically she was not without prospects and generally a fairly well adjusted person.
26. What the present conviction demonstrates is how involvement in the drug culture can wreak havoc on such a life.
27. All too often persons come before court claiming they were introduced to drugs by bad peers. Undoubtedly such persons do exist and undoubtedly such peer pressure exists but the warnings about getting involved in the drug culture are very well publicized and those who decide to become involved whether as a commercial drug dealer or a person who seeks to sustain her own habit and share drugs at a party can only have themselves to blame.
28. I have considered carefully all the mitigation which has been advanced on behalf of the defendant.
29. Mr Fung rightly says the real mitigating factor in the present case is the defendant’s plea for which she will be allowed the usual one third discount.
30. I shall adopt a starting point at the lowest end of the guideline for this quantity (13.60 grammes) of ketamine namely 4 years imprisonment. This will also take into account any quantity intended to be used for the defendant’s own consumption.
31. I reduce that term by one third to 2 years and 8 months to take into account the defendant’s plea.
32. I have considered carefully whether any further adjustment is warranted but this is not a situation where the defendant comes before me with a clear record and she is a mature adult well able to decide her own actions independent of peers. Further as stated above the view of the Court of Appeal is such that social trafficking as opposed to commercial trafficking is not a basis for imposing a lighter sentence.
33. In the circumstances I can find no other reasons advanced in mitigation which would serve to reduce that term and accordingly the defendant is sentenced to a term of 2 years and 8 months imprisonment.
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( Neil Mitchell )
Deputy District Judge
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