HKSAR v. CHAN WAI KI

DCCC1127/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1127 OF 2011

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Reasons for Sentence

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1.  The defendant pleaded guilty to a charge of trafficking in a dangerous drug, namely 197.39 grammes of a powder containing 115.04 grammes of ketamine.

2.  Inside the defendant’s home, the police found the following items under his bed:

(i) inside a plastic bag, there were 15 small plastic bags containing ketamine, a total of 0.91 kilogrammes of a powder containing 0.11 kilogrammes of ketamine;

(ii) a yellow box containing 4 small plastic bags containing ketamine, a total of 7.39 grammes of a powder containing 5.04 grammes of ketamine;

(iii) an electronic scale;

(iv) a plastic spoon;

(v) 31 transparent resealable plastic bags;

(vi) a notebook.

3.  Under caution, the defendant admitted that:-

(i) he intended to sell the drugs to make a profit;

(ii) Ah Chai told him that nine packets of ketamine worth $8,000 and he could sell them for $14,000;

(iii) after selling the drug, he had to return $11,000 to Ah Chai and keep the $3,000 for himself;

(iv) he admitted that he divided the 9 packets into 20 packages and each containing 40 grammes of ketamine;

(v) he would sell each for $900 to the others.

4.  The estimated street value of the drug was about $12,600.      

5.  In mitigation, I am told the defendant had three previous convictions, they were all related to theft.  The defendant is 17 years of age, single and his father passed away when he was 8 months old.  His mother had to take care of five young boys and life was hard for this family.   

6.  Today, his mother and brother all write letters to this court to ask for a lenient sentence.  The defendant also said in his letter that he was very regretful for committing the present offence. 

7.  In mitigation, I was also asked to call for Training Centre and Detention Centre reports before passing sentence on the defendant because of his young age. 

8.  Mr Tse for the defence also placed heavy reliance on the case of HKSAR v Chan Tse Yan HCCC303/2008.  In that case, the defendant pleaded guilty to a charge of trafficking dangerous drug in which it was 247 grammes of a powder containing 198 grammes of ketamine.  At the time of the offence, he was not yet 16.   The court sentenced him to Training Centre.

9.  In the present case, the defendant was already 17½ years old when he committed the present offence.  I refused to call all kind of reports as requested by the defence as it was an inappropriate case to consider even a Training Centre Order purely because the defendant is 17½ years old.  It will give the defendant false hope to call for different reports. 

10.  In Lam Hak Hung v R, CACC724/1972, the court said that,

“It has been said that time and time again that the courts cannot regard it as a mitigation that a person is either very young or very old when he was embarked upon the manufacturing of dangerous drugs or involved himself in trafficking in dangerous drugs. Otherwise, as so often does in fact happen, those who are inveigled into taking part in the manufacture and trafficking will be the lame, the halt, the blind, the young and the old, people who may have some ground for pleading for the mercy of the court, if they are in fact arrested.”

11.  The case of Ko Fei Tat [2002] 4 HKC 59, the sentencing judge ordered the defendant, who was 16 years of age, to Training Centre for trafficking in “Ice” of a quantity of 40 grammes and 27 grammes of cannabis and one count of conspiracy to supply a further 28 grammes of “Ice”. The Court of Appeal held that mitigating factors such as age and disability which for less serious offence would lead to a discount and little weight in such serious offences, save in very rare cases, a Training Centre Order for trafficking in substantial quantity of dangerous drugs was not appropriate.  The Court of Appeal held that the sentence was not only manifestly inadequate but also wrong in principle.

The sentence

12.  The defendant has been convicted of a very serious offence; the quantity involved is 115.04 grammes of ketamine.  According to Hiu Siew Cheng, CACC126/2007, it falls into the sentencing bracket of 6 to 9 years. 

13.  Taking into account of all the mitigating factors, I adopt a starting point of 6½ years, reduced to 4 years and 4 months to reflect his guilty plea.