HKSAR v. LEUNG CHI HO

DCCC1042/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1042 OF 2008

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Reasons for Sentence

1.  The defendant has been convicted on his plea of one charge of trafficking in dangerous drugs, namely 16.67 grammes of a powder containing 14.44 grammes of ketamine, on 14 September last year. 

2.  To recapitulate the facts, two police officers who were conducting an anti-dangerous drugs operation on the night in question at the estate in Ngau Tau Kok, observed the defendant acting furtively and suspiciously on the 32nd floor of the building.  They intercepted him, searched him and found the drugs in question on him in a resealable plastic bag. 

3.  He was arrested and subsequently under caution he admitted the offence, stating that he had bought the ketamine on that same evening around 8 o’clock for $1,200 and that he was intending to share it, “to sniff it”, as he said, with his two friends who were going to be meeting him later that same evening.

4.  The defendant is 24 years of age.  He has a poor record involving a variety of offences, some of them quite serious, but only one previous conviction involving dangerous drugs - that was in August 2006, he was convicted of simple possession of dangerous drugs and sentenced to 4 months’ imprisonment.  In fact, he was convicted of five separate offences of which the possession of dangerous drugs was one, and he was sentenced to a total of somewhere in the region of 3 years’ imprisonment in total.  Mr Tolliday-Wright has informed me that he was  released from prison on 17 April last year, so he committed the present offence approximately five months after his release from prison.

5.  The defendant should know by now what a serious view the courts in Hong Kong take of the offence of trafficking in dangerous drugs.  Heavy sentences are imposed to mark the court’s and, indeed, society’s abhorrence of this offence.  People know that whatever passing, short-term pleasures these drugs might give the user, they ultimately cause very serious problems, dislocation and unhappiness in the community.  People who traffic in these drugs, like the defendant was, are only making it more easily available to others, and thereby helping to spread the habit.

6.  The Court of Appeal has suggested guidelines for sentencing for trafficking in ketamine in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1; the guidelines suggest that for a quantity of narcotic between 10 to 50 grammes in weight a starting point of 4 to 6 years’ imprisonment would normally be appropriate.

7.   The guidelines are based very largely on the quantity of drugs that were being trafficked in.  It is a simple and fair yardstick.  People know that the greater the quantity of drugs they are trafficking in the heavier the sentence which will be imposed.  The guidelines are not a straightjacket.  They can be departed from, for good reason. 

8.  I bear in mind that the defendant has claimed that part and, indeed, a large part of these drugs were for his own consumption and I shall deal with that plea in due course, but otherwise I can see no reason, in assessing the appropriate starting point, to depart from the guidelines.  I adopt a starting point of 51 months’ imprisonment for the present quantity of ketamine, namely 14.44 grammes, that the defendant was trafficking in.

9.  I accept that the defendant has been co-operative, and for his early plea of guilty and co-operation he is entitled to the one-third discount, which reduces the starting point to 34 months’ imprisonment. 

10.  The Court of Appeal has stated in HKSAR v Wong Suet Hau and Anor [2002] HKLRD 69 that where a defendant claims that a significant portion of the dangerous drugs he was trafficking were for self-consumption, the issue should be addressed.  It may well be a factor which makes a difference to the sentence. 

11.  At the same time, the court emphasised the dangers of abuse of this avenue of mitigation: it is, after all, a very easy claim for a defendant to make, and for that reason the sentencing court should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept that the defendant’s contention is true.

12.  The defendant has stated through his counsel that he has been taking ketamine for about 7 years as a social drug with friends, and I accept that for present purposes as being true.  I also accept that the defendant was, as he claimed, intending to share these drugs with friends on the night that he was intercepted and arrested, so he was intending to use a large quantity of these drugs for himself and the rest of it to share with friends. 

13.  I note that in HKSAR v Wong Suet Hau and Anor (supra), the Court of Appeal dealt with the “social trafficking” cases, and said that in a case involving small quantities of the drugs the starting point could properly fall into the lower end of the sentencing scale.

14.  I should say that in my view this is not such a case, since this was not a small quantity of ketamine: as I have indicated, the proper starting point in my view was 51 months’ imprisonment. 

15.  The Court of Appeal did go on to caution that this factor in itself, namely that the drug was for sharing with friends, should not in itself provide a general basis for imposing a lighter sentence than would have been imposed for commercial trafficking:

“The friend who started off or perpetuated another’s abuse of drugs was as dangerous to the community as the commercial supplier of small quantities who would generally traffic in drugs with those who are already addicted.”

16.  I should add that Mr Tolliday-Wright questioned whether it might be appropriate to call for a DATC Report, but in my view that would not be appropriate on a serious charge such as the present one, although I do note that the defendant has never been sentenced to a Drug Addiction Treatment Centre.

17.  I am accepting that a substantial portion of these drugs were for his own consumption and, in all the circumstances, I discount the 34 months, which was the figure I had tentatively arrived at, by a further eight months and sentence the defendant to a total of 26 months’ imprisonment.