HKSAR v. KWAN WAI LEUNG

DCCC 566/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.566 OF 2013

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Reasons for Sentence

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1. The defendant faces 6 charges. Charges 1 and 3 are for trafficking in dangerous drugs, charges 2 and 4 are for possession of dangerous drugs, charge 5 is for possession of apparatus fit and intended for the inhalation of a dangerous drug[1] and charge 6 is for possession of a prohibited weapon.

2. The defendant pleaded guilty and was convicted of charges 1 to 5, not guilty to charge 6. By consent and with the leave of the court, charge 6 was kept on file and is not to be proceeded with against the defendant without the leave of the court.

Facts

Charges 1 and 2

3.  The defendant was stopped by Police officers when he approached the front door of Tip Ling House, Butterfly Estate at about 11:13pm on 18^th February 2013.

4.  Suspected dangerous drugs in 7 re-sealable plastic bags were found on the defendant upon search. They were later confirmed to be 5.59g of powder containing 4.61g of ketamine.

5.  The defendant was then brought home to Room 1247 Tip Ling House. Further suspected dangerous drugs were found inside. They were 14 re-sealable plastic bags containing 11.52g of a powder containing 9.79g of ketamine; 3 re-sealable plastic bags containing 0.67g of solid which contained 0.65g of methamphetamine hydrochloride.

6.  The street value of the respective drugs were $1,773 for the ketamine and $477 for the methamphetamine hydrochloride.

Charges 3, 4 and 5

7.  31 days later on 21^st March 2013, the defendant was stopped outside Tip Ling House again. He was brought to his home and another house search was conducted. There, Police found apparatus fit and intended for drug inhalation with traces of methamphetamine found on them; 1 plastic bag with 0.99g of solid containing 0.94g of methamphetamine hydrochloride; 4 plastic bags with 12.23g of powder containing 10.05g of ketamine and 150 small sized (40x50mm) re-sealable plastic bags and an extendable steel baton.

8.  The defendant was charged accordingly.

Previous convictions

9.  The defendant is of clear record.

Mitigation

10.  Given the relatively young age and the clear record of the defendant, a background report was prepared on the defendant to allow the court to try to understand why he had such a big fall from grace. As seen from the report, it was not such a surprising result from his previously unruly lifestyle.

11.  The defendant came from a broken family, his parents separated when he was 3. He was brought up in a single parent home. He started to dabble in drugs when he was 14. Mr. Lo for the defendant told the court in mitigation that because the defendant was not able to find employment, he resorted to committing charges 1 and 3 in order to make some quick money to pay for his drugs.

12.  Letters from the defendant himself, the defendant’s father, mother (Indonesian) and grandfather were submitted. The defendant’s family members all admit to being neglectful in taking care of the defendant while he was growing up and ask the court to give him a chance so that he can reform and become a useful member of the society.

Sentencing tariff

13.  Mr. Lo rightly pointed out that the sentencing tariff for trafficking in ketamine is as found in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006. For trafficking in ketamine of between 10 to 50 grammes, the tariff is between 4 to 6 years’ imprisonment.

14.  Mr. Lo also reminded the court that because of the trafficking charges being excepted offence, s.109A of the Criminal Procedure Ordinance, Cap.221 does not apply and imprisonment need not be the last resort even though the defendant is under 21 years old.

15.  Furthermore, because the defendant will be looking at a term of imprisonment of more than 9 months, s.54A of the Dangerous Drugs Ordinance, Cap.134 does not apply and there is no need to call for Drug Addiction Treatment Centre reports prior to sentencing the defendant on the possession of dangerous drugs charges.

Sentence

16.  The defendant just turned 20 years old in August. As a result of his parents’ failed marriage, the defendant lost his bearing in life and lost interest in his studies when he was in Form 2. He eventually quit school and got associated with people with triad connections on the street. He frankly admitted during the interview with the probation officer Mr. Laine that he had already toyed with various different drugs and smoked half a pack of cigarette per day.

17.  It is yet another sad story of a child of a single parent family falling into bad habits and eventually criminal activities. Despite this court’s sympathy, the sentence imposed must carry a deterrent effect. Young people must try to understand that even though life may not have been fair on them, they must not give up and resort to drugs. It is not a way out and they will have to suffer the consequences if they are foolish enough to traffic in dangerous drugs.

Charge 1: trafficking in [14.4]g of Ketamine

18.  Having considered the defendant’s mitigation, bearing in mind his clear record, I will adopt a starting point of 51 months’ imprisonment, reducing it by one third to that of 34 months’ imprisonment upon the defendant’s guilty plea.

Charge 2: possession of [0.65]g methamphetamine

19.  The usual starting point for possession of small amount of drug for self-consumption is that of between 12 to 18 months’ imprisonment. Given the relatively small amount of methamphetamine, and given that it was the first possession of dangerous drugs offence, I will adopt a starting point of 12 months’ imprisonment, reducing it by one third to that of 8 months’ imprisonment in recognition of the defendant’s guilty plea.

Charge 3: trafficking in [10.05]g of ketamine

20.  This offence was committed after the defendant was arrested 31 days earlier for the same offence. The defendant committed this offence whilst on police bail. For that reason, I will adopt a slightly higher starting point of 51 months’ imprisonment, reduced to 34 months’ imprisonment upon the defendant’s guilty plea.

Charge 4: possession of [0.94]g of methamphetamine

21.  This offence was committed after the defendant was first arrested 31 days ago. The defendant committed this offence whilst on Police bail. For that reason, I will adopt a slightly higher starting point of 15 months’ imprisonment, reducing it to that of 10 months’ imprisonment upon his plea of guilty.

Charge 5: possession of apparatus

22.  The maximum sentence for this charge is that of 3 years’ imprisonment. The amount of apparatus found is not large. It would appear that they were for the consumption of the dangerous drugs in relation to charge 4. I will adopt a starting point of 12 months’ imprisonment, reducing it by one third to that of 8 months’ imprisonment upon the defendant’s plea of guilty.

Totality

23.  Taking into consideration the age of the defendant, his previously clear record and the matters disclosed in the background report, as well as the circumstances of the commission of the offences, I will sentence the defendant as follows.

24.  First of all, I order the sentences in charge 1 and 2 be served concurrently. Secondly, I  order the sentences in charges 3, 4 and 5 be served concurrently to each other. That leaves us with the question of how to deal with the 2 periods of imprisonment bearing in mind the principle of totality.

25.  Charges 3, 4 and 5 were committed whilst the defendant was on police bail for charges 1 and 2. The commission of the 2 sets of offences were 31 days apart. They were committed at the same place. The defendant had shown no regard for the law, despite being made aware of the Police’s attention on him.

26.  I order that 8 months of the 2^nd batch of sentence be served consecutively to the sentence for the first batch, taking the overall total sentence to that of 42 months’ imprisonment.

[1] S.36, Cap.134, maximum sentence: fine $10,000 and imprisonment 3 years.