HKSAR v. HO CHUN MAN

DCCC 10/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 10 OF 2014

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Reasons for Sentence

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1. The defendant pleaded guilty to 2 charges of trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

Facts

2. Police officers spotted the defendant acting suspiciously at around 8:45am on 24 October 2013 at level L6 of a car park in Kwai Chung. The defendant fled when one of the Police officers approached and revealed his Police identity. The officers gave chase and caught up and subdued the defendant outside ground floor of Cheung Yam House, On Yam Estate.

3. Upon search, 2 plastic bags each containing some powder were found in the waist bag the defendant was carrying. Police also found 2 mobile phones and 3 keys on the defendant.

4. The defendant was then brought back to his place of residence at room 1713 of Cheung Yam House and a house search was conducted by the Police. 1 brown paper bag containing a plastic bag with powder inside, 1 electronic scale and 5 transparent re-sealable plastic bags containing 346 re-sealable plastic bags were found inside a black bag in the bottom drawer of a wardrobe in the defendant’s bedroom.

5. The defendant said under caution that the powder found in his waist bag was ketamine for his own consumption, and that the powder found in his wardrobe was also ketamine belonging to him.

6. In a subsequent video recorded interview the defendant said that he was a transportation worker living with his parents, younger brother and his girlfriend at room 1713. He bought the ketamine found in his wardrobe from a stranger in Mongkok for $5,000 on the evening of 23 October. He also bought the electronic scale and re-sealable plastic bags. Once home, he put some ketamine into around 10 re-sealable plastic bags. These were the ones that were found in the waist bag that he was carrying when intercepted by the Police officers the next morning. The defendant would spend $100 to $300 per week on ketamine, which worked out to around 2 to 3 times each week at 1g to 6g each time.

7. A total of 33.4g of powder containing 18.47g (charge 1) of ketamine were found inside the defendant’s waist bag. A total of 127.88g of powder containing 71.04g (charge 2) of ketamine were found inside the defendant’s wardrobe.

8. The defendant admitted to the final paragraph of the summary of facts which states that the defendant at all material times unlawfully trafficked in the dangerous drugs as particularized in the charge sheet.

Previous convictions

9. The defendant has 5 previous convictions, 4 of which are for possession of dangerous drugs. He was last convicted for possession of dangerous drugs in May 2013 when he was sentenced to 6 months’ imprisonment. He was last discharged from prison on 21^st August 2013.

Mitigation

10. The defendant is 29 years old and lives with his family. He was born in Yunnan in mainland China.

11. Letters written by the defendant’s family, girlfriend and colleagues were submitted. They suggest the defendant is a good person and invited the court to be lenient.  Mr. Fung rightly identified the defendant’s plea of guilty as the most powerful mitigating factor.

12. Mr. Fung pointed out that the defendant is a drug abuser and submitted that he had been consuming about 1-6g of ketamine everyday costing about $300. It forms part of the defendant’s mitigation that some half of the dangerous drugs in his possession that day was for his own consumption.

13. Mr. Fung referred to the case of HKSAR v Wong Suet Hau as authority for the court to take the ‘own consumption’ factor into consideration when sentencing. It Mr. Fung’s submission that ‘all the factors stated in Wong Suet Hau apply’.

Sentencing Tariff

14. The sentencing tariff for trafficking in ketamine is found in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006. The sentence after trial for trafficking between 10 to 50 grammes of ketamine is between 4 to 6 years’ imprisonment; for between 50 to 300 grammes is between 6 to 9 years’ imprisonment.

15. The amount of ketamine involved in the 2 charges are 18.47g and 71.04g respectively, total being 89.51g with a street value of $19,676.

Own consumption

16. The defendant, despite admitting to the final paragraph of the summary of facts which stated that the defendant had at all material times trafficked in the dangerous drugs as particularized in the charges, raised the issue of part of the dangerous drugs included in the charges being for his own consumption.

17. The leading case on this issue is that of HKSAR v Wong Suet Hau, CACC 366/2000 where the Court of Appeal was principally concerned with “whether, if accepted, mitigation that the trafficker had part of the drugs included in the trafficking charge for self-consumption should reduce the sentence from the level which would have been imposed where all the drugs in a trafficker’s possession were for the purposes of trafficking.”

18. The defendant has 4 previous convictions for possession of dangerous drugs, the latest being in May 2013. He was released from jail on 21^st August 2013, just a few days short of 2 months before he committed the present offences.

19. It is the defendant’s suggestion that half of the total dangerous drugs in the present case were for his own consumption. If true, this might have an effect on the eventual sentence to be imposed.

20. The defendant in his video recorded interview as summarized in the summary of facts stated that he would consume ketamine 2 to 3 times per week at 1 to 6g each time. In mitigation, Mr. Fung for the defendant submitted that the defendant bought the ketamine in bulk so that he would have enough to keep him going for one month. Taking the higher number of 3 times per week at 6g each time, the defendant would consume 18g per week, and so 72g in a 4 week calendar month, which is roughly just less than half of the total powder in this case.

21. The defendant was spotted and subsequently apprehended in On Yam Estate, which is also where he resided.

22. Given the long standing problem the defendant has had with dangerous drugs, starting with his first conviction for possession of dangerous drugs back in 2000, and together with the above mentioned factors, I find that there is a real possibility that some of the dangerous drugs in the possession of the defendant in the present case were for his own consumption, and I will sentence him on that basis.

23. I find that I can rely on what the defendant told the Police under caution and use that as a basis to calculate the amount of dangerous drugs that were for the defendant’s own consumption, which as set out above, was 72g of powder, being 44.6% of the total powder. I will then apply this percentage to the total ketamine contents to come up with the figure for the narcotic contents for his own use, which is that of 39.9g of ketamine.

24. I will therefore sentence the defendant on the basis that 39.9g of ketamine was for his own consumption, while the balance of 49.61g was for the purpose of trafficking.

Sentence

25. The maximum sentence for trafficking in dangerous drugs is that of life imprisonment.

26. As a result of the mitigation put forward on behalf of the defendant, namely that part of the total drugs found in his possession, both on his person and at his place of residence, were for his own consumption, I find that a combined approach should be adopted when sentencing the defendant on the 2 charges. In other words, the defendant is sentenced as if he was in possession of all 89.51g of ketamine for one charge, but that 39.9g of that was for his own consumption, with the balance of 49.61g being for the purpose of trafficking.

27. Applying the sentencing guidelines, I will adopt a starting point of 72 months’ imprisonment for his trafficking in 49.61g of ketamine. A full one third discount for his guilty plea would reduce the sentence to that of 48 months’ imprisonment.

28. In relation to the possession of the 39.9g of ketamine for his own consumption, the usual sentence for simple possession of dangerous drugs is that of 12 to 18 months’ imprisonment, depending on the quantity of dangerous drugs involved and if there are other mitigating or aggravating factor.

29. I find that the fact that this is the defendant’s fifth occasion of being found in possession of dangerous drugs and that the possession was only 2 months after his release from prison an aggravating factor. I also find that 39.9g of ketamine is a relatively large quantity of ketamine. For those reasons, I adopt a starting point of 15 months’ imprisonment for the ketamine that was for the defendant’s own consumption. A full one third discount for his guilty plea brings the sentence down to 10 months’ imprisonment.

Latent Risk

30. I have taken into consideration that the defendant was in employment and that this is his first conviction for trafficking in dangerous drugs and decided that I should not enhance the defendant’s sentence based on any latent risk of distribution of the ketamine back into the community.

Totality

31. If all the drugs in the 2 charges were purely for trafficking, and an overall approach was taken, the total of 89.51g of ketamine would attract a starting point of something between 75 and 78 months’ imprisonment, resulting in a sentence of between 50 to 52 months’ imprisonment after discount, which is actually less than the sentence of when some of the drugs were taken as for the defendant’s own consumption.

32. Standing back to consider the totality of the sentence, I find that the proper order is for 2 months of the simple possession sentence to be served consecutively to the trafficking part of the sentence, the rest to be served concurrently, making a total sentence of 50 months’ imprisonment.

33. To avoid any artificiality in splitting up the sentences, I will sentence the defendant to 50 months’ imprisonment on each of charge 1 and charge 2, but order the sentences to be served concurrently. The defendant is sentenced to a total of 50 months’ imprisonment.