HKSAR v. MA SIU HO

DCCC 1048/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1048 OF 2015

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty before me to two counts of offence, namely:-

(1) -Charge 1- trafficking in dangerous drugs

The drugs involved are of three types: (1) 3.88 grammes of a crystalline solid containing 3.82 grammes of methamphetamine hydrochloride; (b) 0.61 grammes of cannabis in herbal form; (c) 17.3 grammes of a solid containing 13.4 grammes of ketamine;

(2) -Charge 2- possession of apparatus fit and intended for the inhalation of a dangerous drug

The subject matter is one inhaling device fit for the inhalation of a dangerous drug, namely, methamphetamine.

2.  The prosecution case is simple and straightforward; basically, a case of police stop and search.

3.  One evening in October last year, whilst cycling along a pavement in Sai Kung area, the defendant threw a box containing the drugs as particularised in Charge 1 upon being stopped by a group of police officers.  It was found that there were 10 plastic bags of drugs in the box.  Seven of them contained ketamine, two “Ice”, one cannabis. 

4.  The officer further found a device fit for smoking “Ice” from the shoulder bag which the defendant was carrying at the time.  It was a plastic bottle containing traces of a liquid containing methamphetamine and a glass apparatus with two openings, one of which was fitted with a plastic tube and a glass tube with a bulb-shaped opening.

5.  The estimated street value of the dangerous drugs seized in this case is approximately $3,000.

6.  Defendant, aged 29, has amassed three previous convictions, all relating to the offence of possession of dangerous drugs, over the past six years and he is currently serving DATC for one of those drug offences.

7.  In mitigation, defence counsel submitted that part of the drugs was for the defendant’s own use. Initially, she put it down to more than half of the drugs for this purpose, but in the end she asked the court to accept that only half of those drugs was for the defendant’s own consumption. 

8.  She justified that by saying that the defendant has been a long-term drug abuser, as can be seen from his criminal record.  He had a salesman job earning 13,000 a month at the time of arrest, which provided him with the means to purchase drugs.  The drugs in question only lasted him for no more than three weeks, but he would share some of it with his friends.  When the defendant first abused drugs, counsel said, he only took ketamine, but now he is taking “Ice” as well and the inhaling device found on him was for smoking “Ice”.

9.  Given the information put forward by the defence counsel, I am prepared to accept that part of the drugs was for defendant’s own consumption and such will be reflected in the reduction of the sentence.

10.  In view of the insignificant amount of herbal cannabis in this case, I will simply ignore it when considering the sentence.

11.  There are separate sentencing guidelines for trafficking in different types of drugs.  The guideline for “Ice”, up to 10 grammes, is 3 to 7 years’ imprisonment; for ketamine, 10 to 50 grammes, is 4 to 6 years’ imprisonment.

12.  However, the present case is concerned with trafficking in more than one type of drugs, namely, “Ice” as well as ketamine.

13.  The relevant authority in this respect is the case of Wong Kin Kau, CACC 269/2009.  The appellate court in Wong’s case has given the lower courts some ideas how to approach this issue.  For example, by converting the less potent drugs into the more potent ones, adding up the total amount, then working out the starting point from the relevant guideline.

14.  In the instant case, compared to “Ice”, ketamine is of lesser potency.  13.4 grammes of ketamine would attract 4 years’ imprisonment, which carries roughly the same sentence as 2.5 grammes of “Ice”.  Adding the amount of “Ice” together, one would get 6.32 grammes of “Ice” and for this amount of “Ice” I would take 66 months as a starting point. 

15.  In Wong Kin Kau’s case, the appellate court also talked about the potential for the mixing of drugs to enhance their potency, which would allow the sentencing court to take a higher starting point.

16.  As it happened, the Wong’s case was concerned with the same two types of drugs, ie ketamine and “Ice”.  It was emphasised that it did not have to have evidence of actual mixing of the drugs.  Given the existence of two drugs, the potential was there and it was something that the court might take into account.  In Wong’s case, for that matter, the appellate court added 1.5 years on top of 12 years.

17.  Turning to the present case, taking into account the potential for the mixing of the drugs, I would add 6 months on top of the 66 months, which takes the starting point up to 72 months.

18.  As I said before, I accepted that part of the drugs was for the defendant’s own consumption and, for that matter, I would take 1 year off the starting point, so it is reduced to 60 months.

19.  As far as mitigation is concerned, apart from his guilty plea, there isn’t any mitigation of substance.

20.  He is entitled to one-third discount for his plea and, there being nothing further to reduce the sentence:-

(1) as for Charge 1, he is sentenced to 40 months’ imprisonment;

(2) as for Charge 2, I take 9 months as starting point and reduce it by one-third for his plea. He is sentenced to 6 months’ imprisonment.

21.  Both terms are to run concurrently with each other.  The total term is one of 40 months’ imprisonment.

22.  According to Section 6A(1)(b) of DATC ordinance, if a person in respect of whom a DATC order is enforced is sentenced to imprisonment for a term of more than 9 months, the DATC order shall cease to have effect.

23.  Now, the defendant is sentenced to 40 months’ imprisonment.  His current DATC order shall lapse.