HKSAR v. CHOW MAN WAI

DCCC 1051/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1051 OF 2014

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Reasons for Sentence

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1.  The defendant pleads guilty to two charges of trafficking in a dangerous drug.

1st Charge

2.  On 9 August 2014, inside an amusement game centre in   Fan Ling, a police officer noticing the defendant acting furtively searched the defendant outside the amusement game centre.

3.  Upon search, one tissue paper packet was found in the defendant’s left trousers pocket.  The packet contained ketamine particularised in the 1st charge and some transparent plastic bags of different sizes.

4.  Under caution, the defendant said that the drugs were for his own consumption.  Cash of $940.60 was found on the defendant. 

5.  The estimated street value of the ketamine seized is about $3,000.

6.  The defendant was subsequently released on police bail.

2nd Charge

7.  On 6 September 2014, police officers found the defendant at an amusement game centre in Sheung Shui and searched him outside the amusement game centre.  The defendant struggled during the search but was eventually subdued. 

8.  One transparent resealable plastic bag containing ketamine particularised in the 2nd charge was then found on the floor.  CCTV footages showed that it was flung out of the defendant’s trousers during his struggle with the police.  

9.  The estimated street value of the ketamine seized is about $3,000.

10.  Cash of 7,520, three mobile phones and a notebook were found in the defendant’s personal belongings.  The notebook contained nicknames and some numbers with dollar signs.

11.  The 19-year-old defendant has no criminal record.

12.  In mitigation, Mr Yu, counsel for the defendant, tells the court that the defendant, being single, is living with his father and stepmother who are now in court in support of the defendant.

13.  The defendant received education up to Form 2 and has worked since 2009.  He last worked as a transportation worker in a vegetable stall.  He has addicted to ketamine since 2010.  When his income could not support his addiction, he was lured to work as a courier for traffickers.  Around 5 to 10 per cent of the drugs he trafficked would be given to him for his consumption as a reward. 

14.  Accepting the responsibility for his wrong, the defendant is now remorseful and would like to turn a new leaf.

15.  Mr Yu tells the court that the imprisonment for the total quantity of dangerous drugs in the two charges, ie about 38 grammes of ketamine, according to the case of Hii Siew Cheng [2008] 3 HKC 323, would be in the region of 4 to 6 years’ imprisonment.  Accepting that the two charges are separate offences, he asks the court to consider totality.

16.  Trafficking in a dangerous drug is a very serious offence.  The Court of Appeal has laid down sentencing guidelines.  The defendant is of relatively young age.  However, for this type of serious offence, the youth factor pales into insignificance.  The present offences are excepted offences.

17.  Despite his clear record and young age, I cannot find any other appropriate sentencing options other than imprisonment.  The two charges involve about 20 grammes and 17 grammes of ketamine respectively.  The two offences were committed at different locations and times with a time gap of almost a month.  I am afraid that I cannot accept the suggestion to calculate the overall starting point by combining the weights of the ketamine in each charge to arrive at a total weight. 

18.  I would accept the defendant’s claim that 5 to 10 per cent of the drugs in each charge being for his own consumption.  The Court of Appeal in HKSAR v Chow Chun Sang CACC 135/2011 said when all or part of the drugs are intended for the trafficker’s own consumption, the ensuring discount to sentence should, depending on circumstances, fall somewhere between 10 per cent and 25 per cent of the basic starting point.

19.  One should however note that accepting the defendant’s claim of self consumption, such part only forms a very small portion of the drugs and might not necessarily attract a deduction as much as 10 per cent of the basic starting point. 

20.  By an arithmetic approach, under Hii Siew Cheng guideline, 20 grammes and 18 grammes (ie deducting 10 per cent from the quantity) of ketamine might attract a starting point of 54 months’ imprisonment and 52 months’ imprisonment respectively.  For the 1st charge, I would adopt 51 months’ imprisonment as the starting point. 

21.  For the 2nd charge, I would use 48 months as a starting point.  I do not enhance the starting point for the second offence despite that it was committed while the defendant was on bail for the first offence.

22.  The defendant will have the full one-third discount for his plea of guilty.  Despite that the defendant is not of extreme youth, I am prepared to give him a further discount of 3 months in recognition of his immaturity. 

23.  On the 1st charge, the defendant is sentenced to 31 months’ imprisonment.  On the 2nd charge, he is sentenced to 29 months’ imprisonment. 

24.  The last question is totality.  Taking into account of the defendant’s previous good character and the same nature of the two offences, I find that a total term of 42 months can reflect the total culpability of the two offences.  I therefore order 11 months of the sentence in the 2nd charge to run consecutively to the sentence in the 1st charge, the rest to run concurrently.  The total term of imprisonment is 3½ years.