HKSAR v. CHAN KA WAI

DCCC 843/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 843 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge of trafficking in a dangerous drug.

2.  The facts of this case are as follows.

3.  The police, obviously acting on information, were waiting for the defendant at the ground floor of the building he was living in.  They stopped and searched the defendant when he appeared.  On the defendant, they found a car key and they all proceeded to the defendant’s vehicle parked in Kowloon Bay.  It was in an open-air car park next to MegaBox.

4.  They then searched the defendant’s vehicle and in the vehicle they found the drugs the subject of the charge.  In one plastic bag, they found 15 smaller packets of cocaine wrapped in tinfoil.  It was determined to be a total of 12.2 grammes of a solid containing 5.86 grammes of cocaine.  In addition to the cocaine, there were nine resealable plastic bags containing ketamine.  The government chemist determined the ketamine to be a total of 66.11 grammes of a solid containing 33.56 grammes of ketamine.

5.  The police also found $34,700 in cash.

6.  The defendant admitted to the police that the drugs were ketamine and cocaine.  He was arrested and cautioned at the scene.  Under caution he admitted he was delivering cocaine and ketamine to customers and would be paid $700 a day.  There is no mention of any of the drugs being for self-consumption.

7.  The police also found that the defendant had three mobile phones.

8.  Later at the station in a subsequent video recorded interview, the defendant further explained that he trafficked in dangerous drugs to earn quick money because his wife was pregnant.  He asked for a chance and remained silent when further questions were put.  Again, there is no mention of any of the drugs being for self-consumption.

9.  The registered owner of the vehicle was determined to be the defendant.

10.  In the summary of facts, the defendant agreed that the estimated value of the cocaine was $12,773.40 and the value of the ketamine was $8,462.  The total value of both types of drugs is $21,235.40.

11.  I have also been told today that the police found in the defendant’s wallet $27,394.50.

12.  The defendant’s plea of guilty is his best mitigation.

13.  I have received sentencing submissions from Mr Lai that are very clear and concise.  His submission very thoroughly goes through sentencing where there is more than one type of drug.  He refers me to the relevant authorities as well as the principles considered appropriate by the Court of Appeal.

14.  The defendant is 32 years old and does not have a good criminal record.  He has 14 previous convictions in 12 court appearances.  One conviction is similar to trafficking dangerous drugs, for which in November 2009 he was sentenced to 16 months’ imprisonment in the Kowloon City Magistracy.  His last conviction was in January 2014 for a robbery charge; he was sentenced to 2 years’ imprisonment in the District Court.  He was released in September 2014.

15.  I have been told that after his release he signed a six-month contract as a delivery worker and earned $11,000 a month. After that contract expired, he could not find full-time work, so worked part time in a container dock area for $6,000 a month.

16.  I have been told that he, with a previous wife, has two children:  a 9-year-old daughter and an 11-year-old son.  He believes they divorced in 2013.  When he is earning money, he helps out that family financially. 

17.  He and his current girlfriend have just had a baby.  The baby was born on 1 September 2015 and is now 5 months old.  The baby and the defendant’s girlfriend live with his girlfriend’s mother.  Other than that, the defendant has no other family to speak of.

18.  I have received a letter from the defendant explaining that he committed this offence out of a sense of urgency because his girlfriend was pregnant.  He explained he was having trouble getting full-time, better paid employment.  He felt he had no other option but to commit this offence.  He is very remorseful, feels ashamed and is sorry he has disappointed his girlfriend.

19.  In submissions, the defendant has submitted that all of the cocaine and some of the ketamine, about 4 grammes, was for his own consumption.  In fact, he has been taking drugs since he was about 18 years old.  I have been told that his drug habit includes taking 3½ grammes of ketamine a day and about half a gramme of cocaine a day.

20.  According to the agreed values of cocaine and ketamine set out in paragraph 7 of the summary of facts, his daily habit would cost about $970, although the defence have submitted he would not pay that much for drugs for his own use.   

21.  It has also been submitted that he could afford such a daily habit without supporting evidence. 

22.  Even if he did not have to pay that much, that is the going market rate, I find it hard to see how he could afford such a expensive daily habit on $6,000 a month.  Even if he earned an extra $700 a day delivering drugs every day of the month, he would only just about be able to afford such an expensive drug habit and nothing else.  I have my doubts that this is true. 

23.  How he can afford what he says is such a heavy drug habit is not my only consideration in believing this submission.

24.  Defence counsel, Mr Lai, has no salary slips that he could produce to show the defendant’s legitimate income.

25.  In addition, I have looked at the defendant’s criminal record.  He has committed many types of offences, but not once has he been convicted of possession of dangerous drugs or any offence related to taking dangerous drugs.  If he has been a drug abuser since the age of 18; I find it very hard to believe he has never been convicted of a drug-related offence, other than his trafficking dangerous drugs previous conviction.

26.  Moreover, I take into account when he was arrested at the scene he only admitted trafficking dangerous drugs.  There or at the station, he does not tell the police that some of the dangerous drugs is for himself and the rest for trafficking.  I find it hard to believe he would not try and convince the police this was the case if it was true.

27.  The defence rely on the urine test conducted on remand after the defendant was arrested for this offence.  He was arrested on 21 July and a urine specimen was collected two days later in the Lai Chi Kok Detention Centre.  Five types of drugs were tested for. 

28.  The defendant was positive for amphetamine only; that does not include cocaine or ketamine. 

29.  However, even if he was positive for cocaine or ketamine, I would still not find that enough to convince me that a large portion of the dangerous drugs in this case was for his own use.

30.  Lastly, I look at the packaging of the dangerous drugs.  The cocaine was packed equally in 15 packets, all packed in one bag, I am sure, ready for sale.  There are nine packets of ketamine:  three are small and six look bigger and about the same size.  The photo album shows where the drugs were found and how they were packed. 

31.  I believe all the dangerous drugs were for trafficking, like he told the police.  There is nothing to suggest in the facts or the defendant’s background or mitigation that show it is likely he is a drug addict and that part of the dangerous drugs was for his own consumption.  I reject this submission.

32.  The guidelines for trafficking cocaine comes from the authority of R v Lau Tak Ming [1990] 2 HKLR 370 and the Court of Appeal is of the view that where between 0 to 10 grammes is trafficked, a 2- to 5-year starting point would be appropriate.

33.  For ketamine, the relevant authority is The Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323, in that authority, the Court of Appeal says where between 10 to 50 grammes of ketamine is trafficked, a 4- to 6-year starting point would be appropriate.

34.  Mathematically speaking, in this case, the cocaine alone would attract a 3 year 9 months’ starting point; the ketamine alone would attract a 5 year 2 months’ starting point.

35.  In Mr Lai’s submission, he quite rightly refers to the approaches considered for a case where there is more than one type of drug.

36.  In my view, the individual approach is not appropriate here; it would mean an excessively high starting point.  The combined approach referred to in the written mitigation is appropriate.

37.  Defendant, please stand up.

38.  I have looked at the facts of the case, mitigation put forward, your background, the defendant’s plea, as well as the authorities I must refer to.

39.  In fact, trafficking a variety of dangerous drugs could be considered an aggravating factor, but I will not apply that here and increase the starting point for this fact, but the defendant is pre-warned. 

40.  Here, I take into account the bulk of the narcotics, the drugs, is ketamine, and I will consider a 5-year starting point appropriate.

41.  However, I cannot ignore the fact there is significant amount of cocaine and, adopting the combined approach, I am going to increase that starting point by 1 year to take into account the cocaine.

42.  Therefore, the starting point I take is one of 6 years.

43.  As I have said, I do not accept the submission that any of the dangerous drugs was for the defendant’s own use.

44.  There is no reason to reduce the 6-year starting point except by one-third for the defendant’s plea.

45.  After that discount is applied, a discount of 2 years, for this offence the defendant is sentenced to 4 years’ imprisonment.