HKSAR v. KARAUL DARIYA

DCCC427/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 427 OF 2011

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Reasons for Sentence

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1.  In a trial which has been lasted for two days, the defendant was convicted this morning of a single charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2.  The particulars of offence aver that the quantity of the dangerous drugs was in relation to 0.14 kilogrammes of a powder containing 0.11 kilogrammes of ketamine.

3.  The facts of this case is very simple.  It is a classic stop-and-search scenario.   At about 10 pm on 1 March 2011, officers of the Kowloon District Special Duty Squad No.3 were conducting an anti-dangerous drug operation in the vicinity of Pitt Street and Portland Street, Yau Ma Tei, Kowloon.

4.  Later in the evening at about 10.55 pm, PW1 and PC3536 and WPC9361 spotted the defendant who was then carrying a black bag, looking nervous and kept looking around and therefore they approached the defendant for enquiry.

5.  After the defendant was intercepted, PW1 searched the black bag carried by the defendant.  During the search, he found a black long-sleeved pullover and inside the right sleeve of the pullover he further found a transparent resealable plastic bag which contained two transparent resealable plastic bags, each of which contained white powder. They were suspected to be dangerous drugs and, as a result, the defendant was immediately arrested and cautioned.

6.  The content of these two transparent bags were later sent to the Government Chemist’s laboratory for examination and the result confirmed it to be ketamine, with the quantity as described in the charge.

7.  The defendant has a clear record and, according to her evidence in court, she came to Hong Kong in 2004 from Russia and worked here as a dancer for six months.

8.  During the time in Hong Kong she met a Filino male and they later got married.  After the marriage, the defendant started to work, first as a dancer in a bar and later as a sales assistant in a jewellery shop. In 2010 the couple separated when the husband returned to Philippines and the defendant met a new boyfriend.  Later, the defendant’s husband returned to Hong Kong and the couple decided to move back together.

9.  The defendant was born in Ukraine and is a Russian national.  She is now only 25 years of age and she had attended community college there.

10.  Mr Loftus who appeared for the defendant in the trial said in mitigation that there is really nothing that can be said for the defendant, apart from urging the court to take into account of the clear record, the background and the youth of the defendant, and to exercise mercy.

11.  Trafficking in dangerous drugs is, of course, a very serious offence.  Anyone who was involved in this kind of criminal activities and was caught by the police would be expected to be dealt with severely by the court.

12.  Although the defendant is young but she is not extremely young.  In a serious offence like this, public policy demands the imposition of a substantial term of imprisonment even upon young offenders in order to send out a clear message.

13.  In recent years the abuse by the youngsters in Hong Kong of ketamine and ecstasy is becoming so serious that in June 2008, the Court of Appeal had acceded to the request by the Secretary of Justice to upwardly revise the sentencing guidelines for trafficking in ketamine as well as ecstasy.

14.  The present offence took place well after the new sentencing guideline was in operation.

15.  According to the case of HKSAR v Hii Siew Ching [2009] 1 HKLRD 1, the new sentencing guideline for trafficking in a quantity of ketamine between 50 to 300 grammes is between 6 to 9 years.

16.  The defendant fought the case and she lost it, and thereby, she also lost the usual one-third discount that would normally be given to defendant who pleaded guilty in a case.

17.  In Re Applications for Review of Sentences [1972] HKLR 370, it was explained that “The personality, youth or personal circumstances of the offender may pale into insignificance because of the magnitude or prevalence of the offence in question.”

18.  The courts must be prepared to

“steel themselves, unless there are particularly powerful and peculiar contrary reasons attaching to the circumstances of the offender and his involvement in the offence, to the imposition of substantial prison terms”

(See HKSAR v Law Ka Kit & Ors [2003] 2 HKC 178, 187)

19.  As said in the authority, this is my duty to sentence the defendant according to the tariff laid down by the Court of Appeal.

20.  There being no other mitigating factors as I can see in this case.  Applying the guidelines, in the end, I sentence the defendant to 6½ years’ imprisonment.