HKSAR v. TAM CHUN HIM

DCCC 75/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 75 OF 2009

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Reasons for Sentence

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The charge

1.  The Defendant pleads guilty to trafficking in a dangerous drug, namely 86.44 grammes of a powder containing 71.8 grammes of ketamine.

The facts

2.  At about 8:30 p.m. on 11 December 2008, while the police were conducting an anti-dangerous-drug operation in Wan Chai area, they saw the Defendant acting furtively outside Ground Floor, No. 368, Hennessy Road, Wan Chai.  They intercepted him for a search.  On him were found one plastic bag containing 7 resealable plastic bags of substance (later analysed to be 86.44 grammes of a powder containing 71.8 grammes of ketamine).  Upon arrest and under caution, he said that the ketamine belonged to himself.  He had bought it from somebody called “Ah Kit” in a bar in Causeway Bay for HK$1,500 4 to 5 days ago.  He had kept it at home but he just brought it out to consume it in a bar while having a drink. 

The Defendant’s circumstances

3.  He is now 24 years of age.  He has 7 previous convictions, 1 of which is for trafficking in a dangerous drug and 5 of which are for possession of a dangerous drug.  He is a drug dependent.  He has received education up to F.3 level.  He was a transportation worker before arrest.  He used to make monthly contribution to his family’s living expenses. 

4.  He committed the present offence whilst on court bail for possession of ketamine in DCCC 1260/ 2008.  

The sentence for trafficking in ketamine

5.  On 6 June 2008, the Court of Appeal in Secretary for Justice v Hii Siew Cheng CAAR 7/2006 laid down new sentencing guidelines for trafficking in ketamine, in place of HKSAR v Lee Tak-kwan Cr App 177/1997, as follows:

(1)  up to 1 gramme – within the sentencer’s discretion;

(2)  over 1 gramme to 10 grammes – 2 to 4 years’ imprisonment;

(3)  10 to 50 grammes – 4 to 6 years’ imprisonment;

(4)  50 to 300 grammes – 6 to 9 years’ imprisonment;

(5)  300 to 600 grammes – 9 to 12 years’ imprisonment;

(6)  600 to 1000 grammes – 12 to 14 years’ imprisonment; and

(7)  over 1000 grammes – 14 years upwards. 

Committing an offence whilst on bail for another offence

6.  In HKSAR v Yuen Gang-shing Cr App 303/ 1997, the Deputy Judge adopted a starting point of 7 years’ imprisonment on the ground that the 1 year on top of the 6 years was due to the applicant’s having committed the offence whilst he was on bail.  In upholding the sentence, Liu JA said:

5.  Commission of any offence whilst on bail is unquestionably an aggravating factor to be taken into account as did the Deputy Judge.

7.  In HKSAR v Ngo Wai-kuen Cr Apps 191 & 334/ 2004, the applicant was put on bail for the an offence of possession of a dangerous drug (Charge 1).  She then committed another offence of possession of a dangerous drug (Charge 2) and the offence of keeping a divan (Charge 3).  Stuart-Moore VP said:

9.  Each offence was committed on a wholly separate occasion.  Indeed, it is a significant aggravating feature that the second and third offences in the sequence were committed whilst the applicant was on bail. 

The sentence I pass

8.  The quantity, 71.19 grammes of ketamine, shall take him into the range of 6 to 9 years’ imprisonment according to Hii Siew Cheng (supra).  I shall take a starting point of 6 years in the present case.  However, he committed the present offence while on bail for another drug offence.  Based on Ngo Wai-kuen (supra), this is an aggravating factor.  I revise the starting point to 6 years and 3 months.  I give him a one-third discount for his plea of guilty.  There are no other mitigating factors.  The sentence is 4 years and 2 months.