HKSAR v. LI KIN BONG

DCCC 660/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.660 OF 2013

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Reasons for sentence

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1. The defendant pleaded guilty to 1 charge of trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. Particulars of the charge are that he on 25^th April 2013 at the corridor of the 5^th floor of Maylun Apartments, no.23 Shu Kuk Street, North Point unlawfully trafficked in 26.04g of a powder which contained 16.82g of ketamine.

Summary of facts

2. The defendant was intercepted by Police officers who were conducting an anti-narcotic operation on the 5^th floor of Maylun Apartments when he was going home which was at Room P on the same floor (“the premises”).

3. Police officers entered Room P upon the execution of a search warrant. During the house search, the defendant told the officers that drugs were placed in the corridor outside. The defendant led the officers to the corridor and took out a paper box which was hidden behind a signboard at the corridor on the 5^th floor. Inside the box were 2 tissue papers. Each tissue paper was wrapped around a re-sealable plastic bag containing a total of 26.04g of a powder which was later examined and confirmed by the Government Chemist to contain 16.82g of ketamine.

4. The defendant was arrested for the offence of trafficking in dangerous drugs. 77 empty re-sealable plastic bags were found inside a larger re-sealable plastic bag found on top of the computer desk of the defendant’s bedroom.

5. The estimated retail value of the ketamine found was $3,099.

Previous convictions

6. The defendant has 4 previous convictions. His first and only drug related conviction was back in 2004 when he was sentenced to 100 hours of community service for possession of dangerous drugs. The rest of his convictions were all for theft and the latest one was in 2006 when he was sentenced to 15 months’ probation.

Mitigation

7. The defendant is 34, educated in Hong Kong up to Form 5. The defendant lives with his mother and one brother at the premises. The premises is owned by the defendant’s aunt who let them live there for free. The defendant’s mother works as a salesperson earning $8,000 per month. The defendant’s brother is in the decoration industry earning about $20,000 per month.

8. The defendant has been working in the stage construction and decoration business for about 7 years, with the same firm. His latest salary was $15,000 per month. Before that, the defendant worked for several years in a waste water treatment company. A letter from his employer was submitted, indicating that they are willing to continue the defendant’s employment after he had served his sentence.

9. Mr. Chan for the defendant submitted that about half of the dangerous drugs in the charge were for the defendant’s own consumption and the court should sentence on that basis. Mr. Chan referred me to the case of HKSAR v Wong Suet Hau, CACC 366 and 487 of 2000, where the Court of Appeal set out the factors to consider when deciding on how to sentence the defendant who claims that some of the drugs in a trafficking charge were for self-consumption.

10. The defendant explained through Mr. Chan that the 77 plastic bags found were for himself to use when he wanted to bring the ketamine outside as it was risky to re-use old bags. The defendant would sell the drugs casually and so did not use any precision measuring equipment such as weighing scales and spoons.

11. Mr. Chan also submitted that there is no latent risk of re-distribution and the possession part of the sentence should not be enhanced. The reason for that being the defendant has the financial means to support his drug use and that he had already admitted that half of the dangerous drugs was for his own consumption and the other half for distribution.

Sentencing Tariff

12. The sentencing tariff for trafficking in ketamine is as set out in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006. The range of sentence for trafficking of 1 to 10 grammes of ketamine is that of between 2 to 4 years’ imprisonment, whereas the range for trafficking between 10 to 50 grammes of ketamine is that of between 4 to 6 years’ imprisonment.

Sentence

13. Having heard from Mr. Chan, I find that I can accept his submissions put forward, which is that about half of the ketamine found were for the defendant’s own consumption and the rest he planned to sell to others. I accept Mr. Chan’s submission that the defendant was not a ‘professional’ dealer in drugs and that he would sell his drugs on a casual basis, and therefore did not have the need of paraphernalia such as weighing scales or spoons, which were not found in the defendant’s place of residence.

14. I will therefore sentence the defendant on the basis that about half of the dangerous drugs involved was for his own consumption.

15. The total amount of powder found was 26.04 grammes and the total narcotic contents is 16.82 grammes of ketamine.

16. The defendant had therefore trafficked in 8.41 grammes of ketamine and possessed the same amount for his own consumption.

17. For trafficking in 8.41 grammes of ketamine, I would adopt a starting point of 45 months’ imprisonment, which would be discounted to that of 30 months’ imprisonment upon the defendant’s plea of guilty.

18. For simple possession of dangerous drugs for self-consumption, the usual range of sentence is that of between 12 to 18 months’ imprisonment. This is accepted by Mr. Chan. I however agree with Mr. Chan’s submission that this part of the defendant’s sentence should not be enhanced by way of applying the principle of latent risk of re-distribution. The defendant has stated since his arrest that about half of the dangerous drugs was for his own consumption and the rest were to share or sell to others. It is also his own admission that he is an addict and there is no evidence to suggest that he would not be able to consume half of the dangerous drugs or that he would need to finance his usage by selling his half of the ketamine.

19. For the 8.41 grammes of ketamine for the defendant’s self-consumption, I would adopt a starting point of 12 months’ imprisonment, which would be reduced to that of 8 months’ imprisonment upon his plea of guilty.

Totality

20. Had the defendant been sentenced on the basis that the full amount of ketamine was for trafficking, I would have adopted a starting point of 54 months’ imprisonment, which would have been reduced to 36 months’ imprisonment upon discount.

21. Mr. Chan suggested that the possession part of the defendant’s sentence should be made concurrent to the trafficking part of the sentence. I disagree. The defendant did not have to sell the drugs to others even though he himself was using ketamine, as his own evidence suggested, he was more than capable of financing his own drug use.

22. However, bearing in mind the principle of totality, I would make only 4 months of the possession part of his sentence concurrent.

23. I will therefore sentence the defendant to a total of 34 months’ imprisonment.