HKSAR v. LAW SIU HONG, KENJI

DCCC 417/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 417 OF 2016

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Reasons for Sentence

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1.   The defendant has pleaded guilty to one charge of trafficking in a dangerous drug.  The particulars are that on 29 February 2016 at about 1.22 am the defendant unlawfully trafficked in namely 59.11 grammes of a powder containing 41.19 grammes of ketamine.

2.   This was a stop-and-search case.  At that time on that date police officers were patrolling in Ngau Tau Kok area and saw the defendant sitting on a flowerbed.  When the defendant saw them, he avoided eye-contact with the officers which made them suspicious.  He was then intercepted for investigation and then searched. 

3.   Firstly, the officer searching the defendant found a bag of dangerous drugs in his underpants.  He was then arrested and told the officer that the drugs was for self-consumption.  The officer continued to search the defendant and found four more bags of ketamine in his left sock and two more packets of ketamine in his right sock.  After those discoveries, the defendant told the police those drugs were for self-consumption. 

4.   The defendant under caution during a video-recorded interview later gave the police further details of where he bought the drugs, from whom and for how much.  He bought them earlier that evening and in fact took some of the drugs.  He did not go straight home but went to meet somebody in Ngau Tau Kok area.  And after that meeting, whilst he was deciding whether to go home, he was then seen by the police officers. 

5.   The defendant’s best mitigation is his plea of guilty.  He is not a man with a clear record.  He has four previous convictions obtained in three court appearances.  All related to drugs but none to specifically trafficking drugs.  In 2007 he was fined for possession of drugs.  In 2008 he was put on probation for possession of equipment intended for inhaling drugs.  In 2015 he was sentenced to a drug addiction treatment centre.  He was released in December and not long after arrested for this trafficking case.

6.   The defendant is 35 years old, single, living in Cheung Chau with his mother.  I have been told that prior to getting involved in drugs, about six years ago, he had a good job with a logistics company and had been there for 13 years.

7.   On the last occasion after the defendant’s plea, I adjourned for a medical report as well as to give the defendant an opportunity to make a non-prejudicial statement to the police. The defendant tried, but the information he gave the police did not lead anywhere. 

8.   The medical report shows that the defendant since 2015 has been diagnosed with drug induced psychosis and since his remand for this case has been given medication for an adjustment disorder. Xxx xx xxxxx xxxx xxxxxx x xxxxxxxx xxxxxx xx xxxxxx xx xxx xxxxxxxxx xxxx xxx The medical report says that at the moment the defendant’s general health condition remains stable. 

9.   There is authorities dealing with trafficking ketamine and I have referred myself to The Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323.  In that authority the Court of Appeal is of the view that where between 10 to 50 grammes of ketamine is trafficked, a 4-to-6-year starting point would be appropriate.

10.   Mathematically speaking, 40 grammes of ketamine as there is in this case would attract a 5 year 6 months’ starting point.  However, in this case the defendant’s mitigation is that part of the drugs would be for his own consumption.  The prosecution does not challenge that submission and it is clear from the defendant’s previous criminal record and mental illness diagnosed that he is a drug addict.

11.   I can take that into account by reducing the starting point by a percentage depending. What percentage would depend on the facts of each case, mitigation put forward and individual pertinent factors specific to each case.

12.   I refer myself to an authority, HKSAR v Tsang Chung Keung CACC 165/2014 where the Court of Appeal discusses several sentences where part of the dangerous drug is accepted for self-consumption, the discounts considered appropriate range from between 10 to 25 per cent.  That authority did remind sentencing courts not to lose sight of the fact that possession of dangerous drugs in itself is an offence punishable by imprisonment and not to be unduly lenient when considering this mitigation.

13.  Defendant, please stand up.

14.   I take into account everything said on your behalf by Miss Wong in mitigation.  I also take into account the details of the medical report, your attempt to help the police, the fact you have no trafficking convictions in the past.  Also relevant is your obvious remorse and family support shown to you.  As I have said, your drug addiction is obvious and I accept that part of the dangerous drugs would be for self-consumption.

15.   After considering all of those relevant factors, I will take for this offence a starting point of 5 years and 3 months.  I will reduce that starting point by 15 months.  That would be a just under 24 per cent discount to reflect the submission that part of the drugs was for self-consumption.  I then take a starting point of 4 years’ imprisonment.

16.   You have pleaded guilty, you are entitled to a discount of one-third from that starting point.  After that discount is applied, for this offence you are sentenced to 2 years and 8 months’ imprisonment.  Do you understand that sentence?

DEFENDANT: Understand.