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DCCC107/2011
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 107 OF 2011
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Before: |
H H Judge A. Wong |
Date: |
10 March 2011 at 3.43 pm |
Present: |
Ms Ko Po-chui, Catherine, SPP, of the Department of Justice, for HKSAR
Mr Au King-wah, Alan, of Hagon Wai & Partners, assigned by the Director of Legal Aid, for the Defendant |
Offence: |
(1) – (2) Trafficking in a dangerous drug (販運危險藥物) |
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Reasons for Sentence
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1. The defendant pleaded guilty to two charges of trafficking in a dangerous drug. In sentencing, I have taken into consideration the whole circumstance of the case, including its nature and facts, in particular the nature and quantity of the dangerous drugs involved, background of the defendant, mitigation put forward on his behalf, and have had regard to sentencing precedents.
2. The facts of the case may be summarised as follows.
3. In the evening on the 7 December 2010, the defendant was stopped by police officers when he was seen acting suspiciously at the Ground Floor lobby of the building in which he was living. Upon search, five transparent resealable plastic bags containing a total of 14.39 grammes of a powder containing 5.41 grammes of ketamine were found in his trousers pocket.
4. Upon being arrested and cautioned, the defendant admitted that he had the intention of delivering the drugs to a “Fei Choi”, but since the latter did not appear, he was bringing the drugs back home.
5. The defendant was then taken back to his home and there a further search was conducted. Inside the flat the following items were found: a resealable plastic bag contains 12.31 grammes of a powder containing 1.86 grammes of ketamine; two packets of paracetamol; 15 packets containing a total of 42.51 grammes of a powder containing 13.98 grammes of ketamine; two packets of desiccant; an electronic scale and a straw, both containing traces of a powder containing ketamine; 264 resealable plastic bags; and HK$200 cash.
6. After being cautioned again, the defendant admitted that he was possessing the said ketamine for sale. The plastic bags were for packaging of the drugs and the cash was the proceeds of ketamine trading.
7. When he was brought back to the police station he made further admission as follows. He had bought the ketamine for HK$7,000 in early November and kept it at home. He had sold ketamine to “Fei Choi” and other friends before. On the day of arrest, he had promised to sell to “Fei Choi” five packets, each containing 3.5 grammes of ketamine, at the price of HK$1,500.
8. The defendant is 34 years of age. He is not a first time offender but this is the first time he is convicted of the offence of trafficking in a dangerous drug.
9. He has on eight previous occasions been convicted. The first one dated back to 1992, it was for the offence of unlawful assembly, for which a Probation Order was imposed. He was in 1993 convicted of theft and he was fined. In 1996, for two copyright offences and one false imprisonment offence, he was sentenced to a total of 6 months’ imprisonment.
10. In 2000, he was again convicted of a copyright offence and was sentenced to 4 months’ imprisonment. In 2001, for the same offence, he was sentenced to 8 months’ imprisonment.
11. On 29 April 2010, he was sent to DATC for treatment for one charge of possession of dangerous drug. He was discharged on 31 August in the same year. Soon he committed the present offence.
12. I was told that the defendant was married but one year after the marriage he separated from his wife. Before the arrest he was living with another lady. They have one son and one daughter. The son is only attending kindergarten and the daughter is 2 years’ old.
13. The defendant was only educated up to Form 1, then he had worked as a waiter for 6 to 7 years and since then has been unemployed. The couple is living on CSSA.
14. I was told that since his discharge from DATC the defendant has been unable to find a job. Under financial pressure to support his family, he committed the present offence in order to make a humble profit.
15. Despite the defendant had been to DATC in 2010 and only been discharged on 31 August 2010, I was told that he was still drug-dependent at the time of the offence and therefore he intended to keep a small amount of the dangerous drug for his own use. In this regard, learned counsel for the defence expressly informed the court that the majority of the dangerous drugs seized was intended for trafficking.
16. According to the guideline in SJ v Hii Siew Cheng [2009] 1 HKLRD 1, the tariff for a conviction after trial of trafficking in 1 to 10 grammes of ketamine is 2 to 4 years’ imprisonment, and in 10 to 50 grammes of ketamine it is 4 to 6 years’ imprisonment.
17. In all the circumstances, I do not consider there exists strong reasons not to follow the tariffs suggested in that case. Ketamine has been shown to be a prevalent drug in Hong Kong. The harm to individuals and the community as a whole is tremendous.
18. Although the defendant is addicted to drugs, it is not appropriate to consider a sentence of DATC in view of the seriousness of the offence. Besides, there are suitable and abundant facilities in the CSD institution for the defendant to get rid of the vice habit.
19. I also bear in mind that Silke V P said in R v Lau Tak Ming [1990] 2 HKLR 370, that within the suggested bands, factors which the court may take into account included the profit which may reasonably be expected to be derived; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender, his previous history of narcotics offences and matters of mitigation.
20. Learned counsel for the defence stressed that the profit expected would be small. This assertion is not inconsistent with the information available in the present case.
21. The defendant claimed that a small quantity of the ketamine seized would be for his own consumption. For this purpose I do not consider it necessary to hold an inquiry. In all the circumstance, I am prepared to accept this assertion, but at the same time also find that the primary purpose of possession of the ketamine was trafficking, and most of the quantity in the defendant’s possession must be for that purpose. Besides, the latent risk factor must not be ignored and in my judgement the risk would have been high in this case.
22. In this connection, I have considered cases such as HKSAR v Wong Suet Hau, CACC336/2000, and HKSAR v Chong Chee Meng CACC315/2008. Taking these matters into account, I will reduce 6 months of the starting point I will otherwise adopt.
23. For Charge 1, the starting point is 18 months; for Charge 2, the starting point is 4 years.
24. The defendant pleaded guilty, I was told that he is remorseful and would make a good endeavour to turn over a new leaf.
25. I am of the view that he is entitled to a one-third discount. In all the circumstance, I consider this is the extent of discount he is entitled to. Undoubtedly his family will suffer, but this consequence is something which the defendant should have considered before he embarked on committing the offence rather than to use it as a factor to ask for a lenient sentence.
26. Based on the matters aforesaid, I sentence the defendant to 12 months for Charge 1 and 32 months for Charge 2.
27. Having regard to the whole circumstances, bearing in mind totality, I order the two sentences to run wholly concurrently. The defendant is to serve a total immediate term of 32 months for the two charges.
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