HKSAR v. KWAN WAI HOU

DCCC48/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 48 OF 2012

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Reasons for Sentence

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1.  The defendant has pleaded guilty today to two charges, the first being trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2.  The particulars of that offence are that he trafficked “Ice” with a purity of 9.39 grammes, ketamine with a purity of 3.24 grammes and cocaine with a purity of 0.1 gramme. 

3.  The 2nd charge is failing to produce proof of identity on demand, contrary to section 17C(3) of the Immigration Ordinance, Cap.115.  

4.  When required by a police officer in uniform, the defendant failed to produce on demand his proof of identity. 

5.  The facts of this case are very straightforward. 

6.  On 4 November last year, at about 1.30 am the defendant and a female were in a taxi travelling along Tai Po Road in Sham Shui Po.  The police had at the same time set up a road block ahead.  Obviously, when the defendant spotted the road block ahead, he asked the taxi driver to stop before the road block.  The defendant and the female alighted from the taxi. 

7.  This aroused the suspicions of the police and they stopped the defendant.  The police found a quantity of dangerous drugs on the back seat of the taxi, and upon a search of the defendant, found more drugs in plastic bags in his left sock.  He was asked for his identification card but failed to produce it.  Under caution, the defendant admitted all the dangerous drugs belonged to him and were for self-consumption and had nothing to do with the female who was accompanying him.         

8.  The defendant has pleaded guilty today to trafficking this quantity of drugs.  His best mitigation today is his plea of guilty.

9.  The defendant has a poor criminal record.  He has two previous similar convictions of trafficking drugs.  The defendant was sentenced in 1996 by the High Court to 8 years’ imprisonment and subsequently in the District Court in 2003 to 6 years and 6 months’ imprisonment.  The defendant also has other convictions for possession of dangerous drugs and theft offences.  

10.  Although the defendant does have previous similar convictions, they are not prevalent enough to constitute an additional aggravating factor.   

11.  I have heard mitigation in full from counsel and been informed the defendant is single but cohabiting with his girlfriend.  He is now 36 years old and until his arrest was working as a chef in a restaurant. 

12.  There is a consideration in sentencing a defendant who traffics two or more different types of drugs.  Here the amount of cocaine is de minimis and not part of my calculation in coming to a starting point.  The other two drugs in this case, “Ice” and ketamine, came in separate packaging, and I have to consider whether a combined approach or the individual approach is more appropriate in this case.        

13.  I have referred myself to several authorities including authorities produced by both defence counsel and prosecution counsel. Those include HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Wong Kin Kau [2010] 4 HKC 443.  Defence counsel has referred me to HKSAR v Cheung Po Cho Tommy, CACC233/2005; prosecution counsel has referred me to HKSAR v Ho Chi Shing, CACC216/2008. 

14.  Where ketamine is concerned, the often cited authority is Attorney General v Ching Kwok Hung [1991] HKLR 125.  That authority laid down the following tariffs.  Where up to 10 grammes of “Ice” is trafficked, a 3 to 7 year term of imprisonment would be appropriate.  Where there is between 10 to 70 grammes of “Ice”, a 7 to 10 years’ term of imprisonment would be appropriate.  An appropriate starting point here for trafficking 9.39 grammes of “Ice” would be 7 years.    

15.  According to the authority of SJ v Hii Siew Cheng, CAAR7/2006, the tariff laid down for trafficking ketamine would be as follows.  Where over 1 gramme to 10 grammes of ketamine is trafficked, an appropriate sentence would be between 2 to 4 years’ imprisonment, so an appropriate starting point for trafficking 3.24 grammes of ketamine would be approximately 2 years and 6 months. 

16.  I have taken into account that the combined approach is when the most serious drug would provide the starting point of the sentence which would be adjusted upwards to take into account of the quantity of the less serious drug.  If I took a combined approach here, I would add the ketamine to the quantity of “Ice” and get 12.63 grammes of “Ice”. 

17.  However, at the same time I must also consider that the presence of more than one type of drug in a trafficking dangerous drug offence must in itself be an aggravating factor.  I would find it appropriate to take a starting point between 7 to 8 years’ imprisonment. 

18.  If I took the individual approach, it would be too harsh on the defendant to add the two starting points together, which would mean a 9½ year starting point. If I took that approach, I would have taken the higher starting point and added between 4 to 18 months, and this would be according to HKSAR v Cheung Kwok Leung Lowence, CACC539/2002, at page 12 paragraph 39, an authority referred to me by defence counsel.    

19.  Defendant, please stand up.

20.  I have taken into account the facts of this case, the types and quantity of the dangerous drugs involved, mitigation put forward, and the authorities that have assisted me.  I will consider the combined approach appropriate and, with reference to the tariffs I have previously referred to, will take a starting point for Charge 1 of 7 years and 6 months.  You have pleaded guilty and you are entitled to a discount of one-third, a discount of 30 months. 

21.  For Charge 1, you will be sentenced to 5 years’ imprisonment.  For Charge 2, I will take a 21 day starting point and give you a discount of 7 days for your plea.  For Charge 2, you are sentenced to 14 days’ imprisonment, which will be served concurrently to Charge 1.  That would leave a total of 5 years’ imprisonment.