HKSAR v. KONG MING FAI

DCCC 993/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 993 OF 2014

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Reasons for Sentence
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1.  Defendant, Mr Kong, has pleaded guilty to one charge of trafficking in a dangerous drug. The drug in question is ketamine, the total amount being 101.97 grammes of the drug.

2.  There is a summary of facts that the defendant has agreed.

3.  The offence was committed on 16 September last year, 2014.  The defendant was intercepted and searched outside Wang Fai House, which is on Wang Tau Hom Estate in Wong Tai Sin in Kowloon.

4.  Inside a bag contained by the defendant, 20 plastic bags of suspected dangerous drugs and a plastic bag containing banknotes and traces of powder were found.  There was a wallet and a coin bag containing something over $8,000 in cash.

5.  The defendant was arrested.  He was cautioned. He said the 20 plastic bags contained ketamine and he said he was delivering them for someone else.

6.  He expanded on that in a later video recorded interview.  He said he was delivering the bags for a reward of $100.  He outlined the prices at which the bags were to be sold.  He also used the banknotes to consume ketamine and left traces of ketamine on them.  He said he had been delivering the drug for three to four days and earned about $2,000.

7.  The total amount of drug is admitted to be 101.97 grammes of ketamine, valued at $16,942.

8.  The defendant’s antecedents were agreed. He is 33 years old, educated to Form 3 and employed as a factory worker and logistics worker.  He is single and lives with his mother.  He is a self-confessed drug-abuser and this has led to him being imprisoned in the past.

9.  He has admitted his antecedents, his criminal record, commenced criminality in 2004 with offences of possession for the purposes of trade and business of infringing copyright works, for which he was sentenced to prison. 

10.  He has been involved in drug offences since 2007.  In 2007 he was convicted of possession of a dangerous drug and fined and later in 2010 for trafficking in dangerous drugs and sentenced to prison for 34 months.  He was discharged from prison on 30 March 2012.

11.  It is clear from the criminal record that drugs have had an effect on the defendant’s life, certainly since 2007.

12.  I obtained a background report on the defendant. The defendant is described as a carefree and weak-willed adult who did not grasp the opportunity to reform himself in the past.  He has overlooked the undesirable consequences of his drug abuse and relapsed to drug taking. 

13.  What can be said in the defendant’s favour is he is completely frank about his addiction and his drug problem.  He is ready to receive punishment, which he knows will be a sentence of imprisonment.

14.  His family is supportive.  Of some interest is the defendant’s attitude towards his mother, who receives renal dialysis.  He assists her in her kidney dialysis every day and accompanies her to the medical appointments.  His mother has had ill health in respect of diabetes, cataract and also lung cancer.  It can be said to the defendant’s credit that he has stood beside his mother in her illnesses, especially recently. 

15.  It is unfortunate the defendant has allowed his life to become ruined by his drug taking and it is to be hoped that he can pursue some rehabilitation plan in future, which can improve his chances on release from custody.

16.  The approach to sentencing is as follows.

17.  There are clear guideline sentences in respect of trafficking in the drug ketamine.  The quantity here falls within the range of 50 to 300 grammes, which has a guideline sentence of between 6 to 9 years’ imprisonment.  The quantity of drug no doubt bears some relation to the point at which the court will fix in the guideline sentence.  The quantity in this case is towards the lower end of the figure.

18.  Also, in choosing this figure, I can bear in mind other mitigating factors such as the clear support the defendant has rendered to his mother in her illness.

19.  I do note that the defendant has a previous similar conviction in 2010.  This can be seen as an aggravating factor in sentencing. 

20.  It is also urged by counsel that the defendant clearly is a consumer of the drug.  Part of the means of consumption - the use of the banknotes - was found together with the drug on his person. 

21.  The defendant would use part of the drugs for self-consumption and the Court of Appeal has said that, depending on the quantity consumed, this can lead to a deduction of between 10 to 25 per cent from the original starting point for sentence.

22.  The defendant is then entitled to a one-third discount, having regard to his plea of guilty.

23.  The figures I will adopt in sentencing the defendant are as follows. 

24.  I will take for this quantity of drugs a starting point for sentence of 72 months’ imprisonment (6 years).

25.  There will be an element of discount for the self-consumption of the drug by the defendant.  I will capitalise that at a figure of 9 months’ imprisonment.

26.  Thus, the sentence before deduction for one-third is 63 months’ imprisonment.

27.  There will be a further one-third deduction from that. 

28.  That is a figure of 21 months to deduct, giving a total final sentence of 42 months’ imprisonment.