HKSAR v. YEUNG WAI HO, HENRY

DCCC 877/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 877 OF 2011

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REASONS FOR SENTENCE

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Overview

1.  The defendant was convicted after trial for trafficking 108.41 grammes of a power containing 79.80 grammes of ketamine.

The facts

2.  In summary at about 2025 hours on 15 June 2011, the defendant and a male later known as Szeto Chi Ching were stopped for a search by 2 uniform police officers, namely PW1 and PW2, at the podium of Fu Yee House, Fu Cheong Estate, Shum Shui Po, Kowloon.  Upon search, nothing illicit was found on the said Szeto.  After searching his front jeans pocket and when PW1 was about to search his rear pocket, the defendant fled.  He was eventually subdued and handcuffed.  After that, 8 transparent re-sealable plastic bags containing white powder were found in his rear pocket, ie Exhibit P1-P8.

3.  At about 2035 hours in that evening, PW1 declared arrest on him for the offence of “Possession of a Dangerous Drug”.  Under caution, the defendant said that he had nothing to say.

4.  Later it is confirmed that Exhibit P1 to P8 contain a total of 108.41 grammes of a powder containing 79.80 grammes of ketamine.  The street value of the seized ketamine was HK$12,033.

Mitigation

5.  The defendant is now 28 years of age, single.  He was educated up to Form 7.  He is now working as a driver earning about HK$10,000 each month.  He comes from a decent family.  His mother aged 56 is a retired police officer whilst his father aged 54 is serving police sergeant.  One of his elder sisters is currently working in Dubai and the other is working in Hong Kong.

6.  He has two previous convictions of “Possession of a Dangerous Drug” in 2008 and 2010 respectively.  In 2008, the drug involved was cannabis whilst ketamine was involved in 2010.  He was sentenced to DATC in 2010.  I am told that the conviction for “Resisting a police officer” in 2011 was part and parcel of the incident in the present case.  He was sentenced to 3 months’ imprisonment.

7.  In mitigation, it is suggested that the defendant was a drug dependent and part of the drugs in question was for self-consumption.  The Court of Appeal decision in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 is referred to.

Sentence

8.  In Secretary for Justice v Hii Siew Cheng[2008] 3 HKC 325 the Court of Appeal laid down the tariffs for trafficking in ketamine.  Where the narcotic content is between 50 to 300 grammes, a term of imprisonment is within the range of 6 to 9 years.

9.  As for self consumption, it is stressed by the defence that given his previous records and the evidence that the defendant was probably under the influence of drugs at the time of interception, the assertion is credible.  At the hearing, the defence confirmed that no evidence would be adduced in support of this assertion.

10.  It is however submitted by the prosecution that given the line of defence advanced at trial, in which the defendant denied knowledge of the existence of drugs in his rear pocket, the question of self consumption cannot logically arise. 

11.  As a matter of principle, a defendant, in my view, who was convicted after a contested trial shall not be deprived of his or her right to put forward a mitigating factor that part of drugs was intended for self consumption.  As a sentencing judge, I have to examine the materials before me so as to determine whether or not the defendant’s assertion is to be accepted.

12.  In the present case, the quantity involved was substantial.  All 8 packets were almost identical in weight, size and packaging.  Given the personal background of the defendant and the overall circumstances, I reject the submission that part of the drugs was intended for self consumption.

13.  Having considered all the circumstances, I fail to see any reason to justify a departure from the sentencing guidelines.  Given the quantity of ketamine involved in this case, I adopt a starting point of 6 years’ imprisonment

14.  Having considered all the mitigation advanced on behalf of the defendant, I see no mitigating factors which warrant any discount in the sentence.

15.  In the result, the defendant is sentenced to 6 years’ imprisonment.  For the avoidance of doubt, the sentence shall run concurrently with the sentence imposed for the “Resisting” charge on 1^st December 2011.