HKSAR v. CHO WAI LAP

 DCCC1184/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1184 OF 2008

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Reasons for Sentence

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1.  The defendant, Mr Cho Wai-lap, faces one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. Particulars of offence are that the defendant:

“...on the 6th day of October 2008, outside Ground Floor, No. 27, Yee On Street, Sau Mau Ping, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 12.48 grammes of a powder containing 10.06 grammes of ketamine.”

2.  The defendant pleads guilty to the charge.

Facts Admitted

3.  On 6 October 2008, at about 2305 hours, police intercepted the defendant outside Ground Floor, No. 27, Yee On Street, Sau Mau Ping, Kowloon, for inquiry. Upon search of the defendant, the police found inside the rear jeans pocket of the defendant a resealable plastic bag containing the dangerous drugs set out in the charge, which was a powder of 12.48 grammes containing 10.06 grammes of ketamine.

4.  The defendant admitted that he was going to share the stuff with his friend. In a subsequent cautioned interview, the defendant admitted that he had purchased the dangerous drug for $800 and was going to share it with any friend he might meet at an amusement games centre.

Criminal Record

5.  The defendant has a clear criminal record.

Background Report

6.  According to the background report of the defendant, he is aged 23 and was brought up under strict and close supervision of his mother. He did not do well academically at school and quitted his study after completing Form 4. He then became a kitchen worker in various fast-food shops. He mingled with undesirable elements and started to abuse ketamine in 2006. He sought help from a social worker regarding the poor relationship he had with his parents about four years ago. He, however, moved away from home two years ago and has since ceased contact with the social worker and his family members.

7.  The defendant claimed that he had purchased the dangerous drugs in question for his own consumption in bulk to get a cheaper price. He denied to have trafficked in the dangerous drugs in question and had only pleaded guilty because his lawyer had no confidence in defending the case. Both the defendant and his parents pleaded for leniency from the court.

8.  The probation officer compiling the background report is of the view that the prospect of the defendant’s rehabilitation is not optimistic unless he is willing to abstain from abusing dangerous drugs, to segregate from undesirable elements, and to reside with his parents to receive their support and supervision.

Mitigation

9.  According to the counsel representing the defendant, the defendant is aged 23 and was a cook when he was arrested. He purchased the dangerous drugs in question in bulk because it was cheaper to buy them in such a manner. He committed the offence only because he intended to share the dangerous drugs with his friends.

10.  In this connection, the counsel points out that the probation officer misunderstood the defendant in stating in the report that he had not trafficked in the ketamine but had only pleaded guilty because his lawyer did not have confidence to defend the charge. The counsel stresses that the defendant maintains his admission that he intended to share the ketamine in question with his friends, thus trafficking in the dangerous drug.

11.  Counsel submitted a mitigation letter written by the defendant to the court. In the letter, the defendant expresses his remorsefulness for committing the offence and explains that he asked the court to revoke his bail so that he could have more time to reflect on his misdeed. He became addicted to dangerous drugs because of stress in his work and influence of undesirable peers. He feels shameful for having hurt his parents and elder sister because of the present case. He is now determined to quit the baneful habit and keep away from dangerous drugs. He asks the court for leniency.

12.  The counsel points out that part of the dangerous drugs in question were for the defendant’s own consumption. He asks the court to take this into consideration in sentencing. He also asks the court to treat the defendant leniently.

Sentence

13.  Trafficking in a dangerous drug is a very serious offence because it makes dangerous drugs more readily available to individuals, thus making them more susceptible to being addicted to dangerous drugs. As pointed out by the counsel in mitigation, the Court of Appeal in the case of Secretary for Justice v Hii Siew Cheng CAAR7/2006 has laid down the sentencing guidelines for trafficking in ketamine. According to the guidelines, for ketamine of 10 to 50 grammes, the normal starting point is 4 to 6 years’ imprisonment.

14.  The ketamine in the present case is 10.06 grammes, so the starting point should be one of 4 years’ imprisonment. Although the dangerous drugs in question were partly for the consumption of the defendant himself, the court is of the view that no allowance is to be given in this connection. The defendant intended to share the dangerous drugs with his friends. This was worse than selling the drugs to them because it would mean that his friends could get the drugs free of charge. This would enable even those who could not otherwise afford the dangerous drugs to have free access to the drugs.

15.  Having considered the whole circumstances of the case, the court follows the guidelines and adopts 4 years’ imprisonment as the starting point in the present case. Giving credit to the defendant for his plea of guilty, the court sentences him to imprisonment of 2 years 8 months.