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DCCC935/2009
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 935 OF 2009
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Before:
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H H Judge A. Wong
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Date:
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19 November 2009 at 11.16 am
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Present:
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Mr Nigel Bedford, Counsel on fiat, for HKSAR
Mr Tang Yiu-wing, instructed by Ivan Tang & Co., for the Defendant
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Offence:
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Trafficking in dangerous drugs (販運危險藥物)
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Reasons for Sentence
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1. The defendant is convicted upon his guilty plea of a single charge of trafficking in dangerous drugs.
2. In sentencing I have taken into account the whole circumstances of the case, including its nature and facts, in particular the nature and quantity of the dangerous drugs involved, background of the defendant as well as mitigation put forward on his behalf.
3. The allegation made against the defendant is simple. The defendant was found sitting in the driver’s seat of a private car parked outside a public housing residential block. The dangerous drugs as set out in the charge were found in the car upon search by police officers.
4. Under caution, the defendant admitted that all the dangerous drugs belonged to him and had nothing to do with others in the car.
5. Today the defendant pleaded guilty to the charge. The dangerous drugs concerned were 40.89 grammes of a powder containing 32.89 grammes of ketamine and 3.41 grammes of a solid containing 2.66 grammes of cocaine.
6. The defendant is 29 years of age. He is not a first time offender. From September 1998, he was on five occasions convicted. The first offence he committed was one of common assault, he was then 18 years of age and was put on probation. Then on 19 March 2001 he was convicted of one charge of trafficking in dangerous drugs and one charge of possession of dangerous drugs, he was again put on probation. On the last two occasions which took place in November 2001 and 2006, the offences he committed were taking conveyance without authority and several traffic offences. He was sentenced to receive training in the training centre.
7. In mitigation the court was told that the defendant intended to reserve one quarter of both kinds of drugs for his own consumption. The prosecution expressly confirmed that this assertion was not disputed. The court was further told that the defendant was remorseful and promised not to commit any offence again. It was stressed that the defendant had the support of the family. Many family members attend the court today to show their support.
8. The case involved trafficking in two types of dangerous drugs, namely ketamine and cocaine. In the case of AG v Chang Chen Liu Sa [1995] 1 HKCLR 69, it was held that the sentencing guidelines as laid down in R v Lau Tak Ming [1992] HKLR 370 were applicable to cocaine. It follows that for trafficking in a quantity of up to 10 grammes of cocaine, the sentence should be 2 to 5 years’ imprisonment.
9. As regards ketamine, the harm the drug may bring to an individual and the community as a whole had been fully explored and recognized since the case of SJ v Hii Siew Cheng [2009] 1 HKLRD 1. In that case the court held that for trafficking in a quantity of 10 to 50 grammes of ketamine, a sentence between 4 to 6 years’ imprisonment should be considered.
10. Having considered the whole circumstances of the present case, I see no reason to depart from the guidelines as laid down in these cases. Since the present case involved trafficking in two kinds of dangerous drugs, I have considered the sentencing approach by reference to the case of HKSAR v Cheng Yat Ming CACC455/2006 and HKSAR v Yip Wai Yin [2004] 3 HKC 367.
11. In my judgment, in the context of the present case a starting point of 5 years is appropriate for trafficking in that quantity of ketamine and a starting point of 2 years is appropriate for trafficking in that quantity of cocaine.
12. It was said in HKSAR v Cheng Yat Ming that “the difficulties being faced in cases of the kind where either an individual or a combined approach is adopted only arise where the sentencing brackets for the types of drugs are markedly different. Where drugs of a comparable kind such as heroin, cocaine and methamphetamine hydrochloride are being trafficked, the combined approach where a global sentence is taken can usually be used.” In an earlier passage, the court described the combined approach as one where a sentence for the most serious drugs can be calculated before an upward adjustment can be made to take into account significant quantities of the other less serious drugs in terms of their potency.
13. Cocaine is all along recognized as a drug which is more serious in terms of its potency, and in terms of sentencing, trafficking in it results in a heavier sentence than for trafficking in the same quantity of ketamine. However, in the context of the present case, I am of the view that it is appropriate and sensible to base the sentence on a starting point adopted for the drug of ketamine with consideration of whether any adjustment is required for trafficking also in cocaine. After all, the difference in seriousness between the two types of dangerous drugs, if there is any at all, has been very much reduced in its significance after the decision in Hii Siew Cheng.
14. In my judgment, for trafficking in the whole quantity of the dangerous drugs involved in the present case, a starting point of 5½ years is appropriate.
15. The defendant pleaded guilty, he is entitled to a one-third discount for that factor alone.
16. It is not in dispute that the defendant intended to reserve one quarter of the quantity of each kind of drugs for his own use.
17. I considered the matter having regard to cases such as HKSAR v Wong Suet Hau [2002] l HKLRD 69 and HKSAR v Cheung Ching Fai CACC443/2005. It was said in the former case that the sentence should be adjusted to reflect the fact that not all the drugs were for trafficking. However, it was also said that the court needs to bear in mind that “the quantity accepted as having been intended for self-consumption carries a sentence in any event and that this by itself be aggravated for the latent risk factor so that in most true mixed cases the difference in sentence, if any, will be slight.” It was mentioned in the latter case that any reduction to be afforded to the defendant might be offset by the element of sentence that was required to be imposed to reflect the dangerous drugs of which the defendant was possessed only together with an element to reflect the latent risk factor.
18. In the present case there is no dispute that the defendant intended to reserve a quarter of the drugs for his own consumption. I therefore accept the assertion of the defendant. That would mean possession of quite a substantial quantity of dangerous drugs, in particular, ketamine, and for that, a high degree of latent risk exists. I also bear in mind the length of sentence for simple possession of each type of drug if an imprisonment term is appropriate. I also bear in mind that it follows from the defendant’s own assertion that he must be aware that he was in possession of two types of dangerous drugs.
19. In all the circumstances, I am prepared to give the defendant a further discount of 4 months for the accepted assertion that he possessed one quarter of the dangerous drugs for the purpose of his own consumption.
20. Based on the matters aforesaid, I sentence the defendant to 40 months’ imprisonment for the charge.
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