HKSAR v. KWONG KAR CHUN

DCCC 697/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 697 OF 2016

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant has pleaded guilty to two offences, firstly, trafficking in a dangerous drug and secondly, theft. The drugs particularised are cocaine in a quantity of 4.40 grammes and ketamine in the quantity of 4.44 grammes. The item stolen is a bank card. The facts are straightforward.

2.  The offences came to light as a result of a taxi being stopped on 27 April 2016 in a roadblock.  The defendant was a rear seat passenger in the taxi.  He was searched and the drugs were recovered from his body in various locations such as trouser pocket, underpants and left trouser pocket.  The street value of the drugs taken together is agreed to have been $7,575. 

3.  Also found on the defendant was a bank card which had been lost in March of that year.  The card is described as an ATM card and it had not been used. 

4.  The defendant was cautioned at the scene and he admitted he possessed all of the drugs and they were all for his own self-consumption.  He had picked up the bank card two days previously.  Later in a video-recorded interview he expanded upon those admissions.  He had bought the drugs for $5,000 from a friend two days before.  He proposed that he was going to consume them himself.  He kept the drugs on him at all times.  He had simply picked up the bank card.  He admits today that he was in possession of the drugs for trafficking purposes. 

5.  In mitigation it is said that he is a low-level trafficker selling the drugs to support his own habits and the evidence at trial appears to support that. 

6.  As far as the defendant’s antecedents are concerned he is aged 29.  He has worked as a salesman but was unemployed at the time of his arrest. 

7.  His antecedents state that he is a drug addict. The criminal record supports that proposition, the first offence for possession of dangerous drugs being in 2007.  It started with a fine and then later in 2009 he was placed on probation for the same offence; by 2010 for breach of that probation order he was sent to a Drug Addiction Treatment Centre.  A further conviction for which he continued in the Drug Addiction Treatment Centre later in 2010 and then finally 2014, a sentence for trafficking in dangerous drugs which was a sentence of 32 months’ imprisonment. 

8.  Part of the defendant’s mitigation is that he is a consumer of drugs, that proposition appears to be supported by his criminal record.  Also on admission into the custody of Correctional Services Department he was subject to drug testing.  Results show that he was positive to both cocaine on 29 April and also ketamine as well.  So I can reach the conclusion he had been consuming those drugs prior to his arrest and detention.  His mitigation is he had been a drug addict since 2005, some two years before his first conviction.

9.  As far as the rest of the mitigation is concerned, it is asked that the court consider that the defendant would consume a significant quantity of drugs himself.  He said he would consume, if given the chance, up to half of that drug and so a discount is asked for on that basis as well as the ordinary discount for a plea of guilty.

10.  As far as the bank card is concerned, it was picked up and never used.

11.  Turning to the approach to sentencing, I first look at the starting points which will be determined by the quantity and type of drug and also the aggravating factor of the defendant having a previous conviction of trafficking in a dangerous drug.  Now the quantities were 4.40 grammes of cocaine contained in 29 plastic bags and 4.44 grammes of ketamine.  It is what described as a cocktail of drugs and the guideline sentences for each are slightly different.  For cocaine which follows the guideline in respect of heroin, up to 10 grammes can realise a sentence of between 2 to 5 years’ imprisonment; for ketamine, between 1 to 10 grammes can lead to a sentence of between 2 to 4 years’ imprisonment, and here dealing with a total of some 8.84 grammes in total of both drugs.

12.  Taking what would be the combined approach where one looks at the guideline in respect of the most serious -- the combined drugs and takes the guideline in respect of the most serious of the drugs and that would lead to a guideline sentence or a starting point for sentence in the region of 4 years’ imprisonment.  So I shall take that as the figure of 4 years as the initial starting point.

13.  The defendant has a previous conviction for trafficking in 2014.  That is an aggravating factor and will lead to an additional element of sentencing.  Clearly the previous sentence did nothing to deter the defendant from continuing to commit this offence.  I shall add a figure of 4 months’ imprisonment for that which leads to a starting point now of 52 months’ imprisonment.

14.  I turn to the first mitigating factor set out and that is the defendant’s consumption of the drug.  There is settled authority that where a significant proportion of the drug would be consumed by the defendant himself then that is a mitigating factor which can lead to a deduction from starting point.  The deduction for that figure can be between 10 to 25 per cent of the original starting point. 

15.  I see no reason to question the defence submission that the defendant is a low-level trafficker and would consume a significant portion of this drug.  He is unfortunately quite a long-term addict now.  I shall take a figure in the region of 15 per cent for that and particularise that as a deduction of 7 months from the present starting point leading to a starting  point now at 45 months’ imprisonment.

16.  The defendant is entitled to a one-third discount which will be 15 months, so that leads to a final figure on charge 1 of 30 months’ imprisonment.

17.  On the 2nd charge, that of theft of the bank card, I will take a starting point of 6 months’ imprisonment and reduce that to 4 months’ imprisonment for the defendant’s plea of guilty. 

18.  Of course being a separate offence all of that can be served consecutively but to achieve what I consider to be the appropriate overall total sentence I shall order 2 months be served consecutively to charge 1 and the balance concurrently which leads to a sentence of 32 months’ imprisonment.