HKSAR v. HO WAI LOK

DCCC 943/2018

[2019] HKDC 944

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 943 OF 2018

____________

____________

REASONS FOR SENTENCE

1.  The defendant pleads guilty to two charges of trafficking in ketamine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.  In summary at around 1905 hours on 17 July last year the police intercepted the defendant outside Shop G7-G8, 17 Nelson Street in Mongkok. 

3.  The police conducted a body search and found inside the right front pocket of the defendant’s trousers an orange bag inside which was a total of nine transparent re-sealable bags each containing ketamine. 

4.  Six small transparent re-sealable bags contained a total of 4.92 grammes of a solid containing 4.26 grammes of ketamine and three bags contained a total of 2.52 grammes of a solid containing 2.18 grammes of ketamine (charge 1). 

5.  Under caution the defendant admitted selling the dangerous drugs for a daily reward of $2,000.  The defendant also told the police he had more drugs which were placed in a booth in Sai Yeung Choi Street South.

6.  The defendant also possessed two mobile phones, one tablet computer, HK$16,837 and RMB ¥1 cash and a waist bag. 

7.  The defendant then led the police to the G/F, 22A, Sai Yeung Choi Street South where the police seized a canvas bag inside which were ten transparent re-sealable bags containing a total of 8.25 grammes of a solid containing 7.15 grammes of ketamine (charge 2).

8.  Under caution the defendant admitted selling the dangerous drugs on behalf of someone else. 

9.  The estimated street value of the ketamine is $5,829.

Mitigation

10.  In passing sentence, I have carefully considered the oral and written submissions of Mr Tsang including that the defendant acted out of stupidity and greed[2].  I have read the mitigation letters written by the defendant and his parents.

11.  I take into account the defendant has no previous convictions for trafficking in drugs.  I note that the defendant was convicted of possession of drugs in 2007, over 10 years ago, when he was fined $2,000. 

Guidelines

12.  In Secretary for Justice v Hii Siew Cheng[3] the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 1 and 10 grammes sentence after trial falls within the range of 2 to 4 years’ imprisonment. 

13.  On a purely arithmetical approach a starting point of just over 3 years and 2 months would be appropriate for trafficking in 6.44 grammes of ketamine and just over 3 years and 4 months for trafficking in 7.15 grammes of ketamine. 

14.  Taking into account the defendant has no previous convictions for trafficking in drugs, I adopt slightly lower starting points of 3 years on charge 1 and 3 years and 3 months on charge 2. 

15.  Giving the defendant full credit for his plea of guilty reduces the sentences to 2 years and 2 years and 2 months’ imprisonment respectively.

Co-operation

16.  Mr Tsang submits that credit should be given to the defendant for his co-operation with the police, including informing the police that he had more drugs and leading the police to seize those drugs[4].    Ms Khubchandani confirms without the defendant’s co-operation the police would not have known about the ketamine subject of charge 2.

17.  In HKSAR v Ma Ming[5] the Court of Appeal held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount. 

18.  The Court of Appeal in HKSAR v Ngo Van Nam[6] reaffirmed the position that a judge was not obliged to give a discount over and above the one-third discount explaining that the mitigating factor of a confession was subsumed within the one-third discount.   

19.  The court in Ma Ming did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge. 

Totality

20.  I am satisfied in considering totality of sentence I should look at the combined total of ketamine.  The total narcotic is 13.59 grammes.

21.  In Secretary for Justice v Hii Siew Cheng the court held that where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years’ imprisonment.  On a purely arithmetical approach a starting point of just over 4 years and 2 months’ imprisonment would be appropriate for trafficking in 13.59 grammes of ketamine.  On a plea of guilty this would result in a sentence of just under 2 years and 10 months’ imprisonment.

22.  Taking into account the defendant’s co-operation with the police I am satisfied a total sentence of 2 years and 6 months’ imprisonment properly reflects the defendant’s overall criminal culpability on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[7].  

Charitable donations

23.  Mr Tsang submits to court a letter from World Vison showing that in 2015 the defendant sponsored a child in Nepal.  Reference is also made in the parents’ letter to the defendant sponsoring children in Africa. 

24.  Mr Tsang says that the defendant has donated around $4,000 per year for three years.  Although written proof cannot be found I accept what Mr Tsang tells the court.

25.  In recognition of making these charitable donations, I further reduce the total sentence by 1 month to 2 years and 5 months’ imprisonment.   

Sentence

26.  The defendant is convicted and sentenced as follows:

Charge 1 – 2 years’ imprisonment;

Charge 2 – 2 years and 2 months’ imprisonment with 5 months consecutive and 21 months concurrent to charge 1;

The total sentence to be served by the defendant is 2 years and 5 months’ imprisonment.