HKSAR v. CHAN WAI TO

DCCC1162/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1162 OF 2008

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Reasons for Sentence

1.  The defendant, Chan Wai-to (aged 19) pleaded guilty to two charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

2.  The Summary of Facts, which had been admitted by the defendant before he was convicted, is simple and straightforward.  According to the Summary of Facts, in the evening of 24 October 2008, the police laid in ambush outside the defendant’s residence in a public housing estate situated in Tung Chung, Lantau Island, New Territories.  And upon seeing the defendant and another male coming out of the flat, the police immediately came out and stopped both the defendant and the other male.  The defendant was finally intercepted after a brief chasing by the police.

3.  Upon search, the police found in the right back pocket of the defendant’s jeans a wallet containing five transparent resealable plastic bags which contained a total of 10.60 grammes of a powder containing 9.04 grammes of ketamine.  The defendant was arrested and cautioned by the police.  Under caution, he admitted that the white powder was “K Chai” which he intended to sell to the friends to earn a little money.

4.  Subsequently, the defendant was later escorted back to the flat for a house search.  There, further ketamine was found.  It was found in the drawer of the defendant’s bunk bed a paper box containing a transparent resealable plastic bag of 1.18 grammes of a powder containing 1.00 gramme of ketamine.  Together with the ketamine, there were also 23 transparent resealable plastic bags, a plastic spoon and a plastic straw segment.  Traces of ketamine were found in three of the plastic bags as well as on the plastic spoon. 

5.  It was clear that the defendant had used both the plastic spoon and also the plastic straw segment to divide the ketamine into the small plastic bags.  For this quantity that was found in the flat, defendant was also arrested and cautioned and under which he admitted that the bag containing the “K Chai” was that he would divide it with the spoon and the straw segment, and the “K Chai” would be placed inside the plastic bags for sale.

6.  In the final paragraph of the Summary of Facts, it was revealed that during a subsequent cautioned interview, the defendant further admitted that in fact he bought 120 grammes of “K Chai” for HK$6,200 on 23 October 2008.  He then divided the “K Chai” into bags of 0.4 gramme each and sold each bag for HK$100.  Finally, the HK$3,370, which was found in his wallet when he was arrested, was part of the profits made from selling the “K Chai”.

7.  This is the first time the defendant was involved in an offence concerning drugs.  He had one previous offence of affray which was in 2007, for which he was given a probation supervision for 24 months.  I shall treat him as a person of a clear record when I sentence him this time under the operations of the Rehabilitation of the Offenders Ordinance.  However, it was clear that the defendant was in breach of the probation order when he committed the present offences.

8.  The defendant was born in Hong Kong.  He had education level of Form 1 only.  After that, he had several jobs.  According to the antecedent statement, he is now attending a course of building services and management at IVE. 

9.  Trafficking of dangerous drugs is of course a very serious offence.  Anyone who was involved in this kind of criminal activities and was caught by the police would be expected to be dealt with severely by the court.  Although the defendant is only 18 when he committed the present offences, my view is that the offence itself is simply too serious to justify the making of a training centre order.  Our public policy consideration demands the imposition of a substantial term of imprisonment even upon young offenders like the defendant in order to send a clear message.  

10.  In recent years, the abuse by the youngsters in Hong Kong of ketamine and “Ecstasy” is becoming so serious that in June 2008, the Court of Appeal had acceded to the request by the Secretary of Justice to upwardly revise the sentencing guidelines for trafficking in ketamine as well as “Ecstasy.” 

11.  The present offences took place after the new sentencing guideline was in operation.  Therefore, according to the case of Hii Siew Cheng [2009] 1 HKLRD 1, the new sentencing guideline for trafficking in a quantity of ketamine between 1 to 10 grammes is between 2 to 4 years. 

12.  In this case, there are altogether two charges.  The total quantity involved was just about 10 grammes of the ketamine.  According to the new guideline, the sentence for this quantity will therefore be one of 4 years. 

13.  There is no other mitigating factor as I can see other than the fact that the defendant has pleaded guilty.  It has been urged by his counsel that he came from a broken family, and he was rendered with little or no supervision when he was brought up.  However, family circumstances virtually play no part at all when I come to consider passing a sentence in a serious offence such as the present.  After the one-third customary discount on account of his plea, the sentence that I shall pass to the defendant is one of 32 months’ imprisonment on each charge because of the totality principle and the sentence on both charges to run concurrently.