HKSAR v. PAU KING KONG

DCCC 179/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 179 OF 2012

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REASONS FOR SENTENCE

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The defendant pleaded guilty to 6 charges of "Trafficking in a dangerous drug". Charges 1 and 2 involve ketamine, whereas Charges 4 to 7, methamphetamine hydrochloride (ICE).

Summary of Facts

2.  During the period of Charges 1 to 7, PC 4116 (PW1) was tasked to disguise himself as a casual transportation worker who is a drug addict.  DSGT 48109 (PW2) was the supervisor/handler of PW1.

3.  In the afternoon on 15 July 2011, PW1 received a phone call from a male named "Ah Kai" asking if he wanted to purchase some ketamine.  PW1 gave a positive reply.  They agreed to meet at a fast food restaurant at San Fung Avenue, Sheung Shui.

4.  At the restaurant, Ah Kai introduced the defendant to PW1.  The defendant told PW1 that the minimum order is $500 worth of ketamine.  PW1 gave $500 to the defendant, who then gave a plastic bag to PW1.

5.  PW1 later on handed the plastic bag to PW2.  The plastic bag was found to contain 1.98 grammes of a powder containing 1.23 grammes of ketamine.  This is Charge 1.

6.  On the offence dates of Charges 2 and 4 to 7, the defendant phoned PW1 offering to sell him dangerous drugs.  On each occasion, they met at the location stated in the respective charges.  The defendant sold the dangerous drug particularized in each charge to PW1.  After each purchase, PW1 handed the drug to PW2. 

7.  On the date of Charge 7 (13 November 2011), after exchanging money and dangerous drug between PW1 and the defendant, the defendant was arrested by police officers who were laying ambush in the vicinity.  Under caution, the defendant admitted that the ICE was his.  In his subsequent video interview, the defendant admitted that he had sold dangerous drugs to "Ma Chai" (i.e. PW1) on 15 July (Charge 1), 21 July, 24 July (Charge 4), 13 October (Charge 6) and 13 November (Charge 7).  He knew he was selling ICE or ketamine.  He, however, denied having sold any drugs to "Ma Chai" on 18 July (Charge 2).

Mitigation & Sentence

8.  The defendant is now 18 and has a clear record.  He has completed F.4 and quitted school in January 2011.  In view of his age, clear record and the quantity of dangerous drugs involved, I decided to call for a Training Centre Report.

9.  Defence lawyer Mr. FUNG informed me that the defendant is a drug addict.  Prior to his arrest, he was spending $500 to $600 per day on ICE.  As a result, he became a drug peddler in order to feed his habit.  The Training Centre Report confirmed that the defendant is a drug dependant, and thus not suitable for detention in a Training Centre.  The defendant's father is unable to work owing to health problems.  His mother has moved away after divorcing his father.  No one in the family was able to supervise the defendant.

10.  The defendant's family situation deserves some sympathy, but it is not an excuse for becoming a drug addict and subsequently, a drug peddler.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders.

11.  The Court of Appeal has laid down clear sentencing tariffs for trafficking in ketamine (see  SJ v HII Siew Cheng [2009] 1 HKLRD 1) and ICE (see A-G v CHING Kwok-hung [1991] 2 HKLR 125). For up to 10 grammes of ketamine, the sentence ranges from 2 to 4 years' imprisonment.  For up to 10 grammes of ICE, the sentence ranges from 3 to 7 years' imprisonment.

12.  Charges 1 and 2 involve 1.23 grammes and 1.11 grammes of ketamine respectively.  For each charge, I adopt a starting point of 2 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 16 months.

13.  Charges 4, 5 and 7 involve 0.22 gramme, 0.16 gramme and 0.72 gramme of ICE respectively.  For each charge, I adopt a starting point of 2 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 16 months.

14.  Charge 6 involves 2.92 grammes of ICE and 0.83 gramme of NNDMA.  For the purpose of sentencing, I will ignore the negligible quantity of NNDMA.  For Charge 6, I adopt a starting point of 4 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 32 months.

15.  In this case, other than the one-third discount for the guilty pleas, I see no mitigating factors which warrant any further discount.

16.  The aggregate quantity of ketamine in Charges 1 and 2 is 2.34 grammes.  I bear in mind that for this amount, the appropriate starting point should be 2 years.  The aggregate quantity of ICE in Charges 4 to 7 is 4.02 grammes.  I bear in mind that for this amount, the appropriate starting point should be 4.5 years.  Having considered the totality principle, I take the view that the appropriate overall starting point for all 6 charges should be 5.5 years.  With the one-third discount, the overall sentence should be 44 months.  To achieve this, I order the sentences to run in the following manner :-

(i) Charges 1, 2, 4, 5 and 7 concurrently; and

(ii) 28 months in Charge 6 consecutive to all other charges.

Thus, arriving at a total prison term of 44 months (3 years and 8 months)