DCCC607/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.607 OF 2010

---------------------------

---------------------------

Reasons for Sentence

1.  The defendant faces 2 charges of trafficking in dangerous drugs. He pleaded guilty to charge 1, not guilty to charge 2. The defendant however pleaded guilty to the lesser offence of possession of a dangerous drug in relation to charge 2, which was accepted by the prosecution.

Summary of facts

2.  At 8:30pm on 3^rd March 2010, police officer spotted the defendant acting furtively at the lift lobby of 9/F, Wah Kiu Mansion. The defendant was intercepted and searched at the staircases between the 9^th and 10^th floor of the building.

3.  Upon search, 1 plastic bag containing some suspected Ketamine (E1, the trafficking charge drugs) was found from the right front pocket of the trousers which the defendant was wearing. The defendant was cautioned and he confessed that he was delivering the Ketamine for someone.

4.  The defendant was then brought to his home for a house search. More Ketamine was found in a metal container on the computer desk of the defendant (the possession charge drugs). The defendant was arrested again for trafficking in dangerous drugs and he confessed under caution that he bought the Ketamine for his self-consumption, and that any left over would be for sale.

5.  In a subsequent cautioned video recorded interview, the defendant further confessed that one day before his arrest he bought from a person known as “Bor Bor” 10g of Ketamine for HK$1,000 for his own consumption, and that any left over would be for sale.

6.  On 3^rd March 2010, a casual friend known as “Gwai Jai” called the defendant over the phone to buy HK$100 worth of Ketamine. The defendant therefore took some Ketamine (E1) out of the Ketamine he bought from Bor Bor and went to Wah Kiu Mansion to deliver the drugs to Gwai Jai. He was however arrested before he could make the delivery.

Previous record

7.  The defendant had a clear record.

Mitigation

8.  The defendant is 22, born in Hong Kong and is single. His father passed away 4 years ago and the defendant now resides with his mother, who is 46 years old and working as a printing worker. The defendant has a younger sister and she is working as a general clerk. The defendant had been unemployed for some 5 months. Prior to his unemployment, he used to work in Watson’s as a delivery worker.

9.  It was submitted by Mr. Sher for the defendant that the defendant had been in full cooperation with the Police since his arrest, disclosing full details relating to the drugs found in his possession.

10.  Mr. Sher for the defendant confirmed that the sentencing tariff in the case of Secretary for Justice v Hii Siew Cheng(許守城) [2009] 1 HKLRD 1, CAAR7/2006 is applicable in our present case. The tariff for sentence after trial for traffickers in Ketamine of over 1 gramme to 10 grammes is 2 to 4 years’ imprisonment.

11.  Mr. Sher submitted that in relation to the lesser offence in charge 2, it was committed out of the same series of criminal venture and that any sentence imposed should be made concurrent to that of charge 1.

Sentence

12.  Although the defendant is 22 years old, the offence of trafficking is an excepted offence and as such jail needs not be the last resort when dealing with someone of his age. Furthermore, the age of the defendant does not fall within the group of “extreme youth” and so would not in itself be a mitigating factor.

13.  In relation to the lesser offence of possession in charge 2, since the defendant will be facing a sentence more than 9 months in charge 1, there is no need to call for a DATC report prior to sentencing on the lesser offence: see s.54A of Cap.134.

14.  Unlike most other cases that this court has recently dealt with involving younger people where they were offered a modest monetary reward for delivering some drugs, here the defendant bought the drugs first as a consumer and then resell any surplus drugs for gain. I find his conduct involved a higher level of criminality.

15.  I see no mitigating factors that would allow me to depart from the guideline sentence in relation to charge 1. I will adopt a starting point of 27 months’ imprisonment for charge 1 and reduce it by one third in recognition of the defendant’s guilty plea to that of 18 months’ imprisonment.

16.  In relation to charge 2, although there is no guideline sentence, it is the view of the Court of Appeal that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, per Stock JA in the case of HKSAR v Mok Cho-tik [2001] 1 HKC 261.

17.  In our present case, the quantity involved is not on the high side and I will adopt a starting point of 12 months’ imprisonment. I grant the defendant the full one third discount in recognition of his guilty plea and reduce the sentence to 8 months’ imprisonment.

Totality

18.  While I would agree that the 2 offences arose out of the same series of facts, I find that a wholly concurrent sentence would not properly reflect the defendant’s criminal intention in relation to each of the 2 offences. The simple possession was for his possession of the drugs while the trafficking was for his sale and delivery of some other drugs, although they were part of the batch that he had purchased from Bor Bor.

19.  I will therefore order that 6 months of charge 2 be served consecutively to the sentence in charge 1, making the total sentence that of 24 months’ imprisonment.