HKSAR v. SAE TANG ANUCHAR

DCCC 371/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 371 OF 2013

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2.  The drugs of that charge were 1.98 grammes of a solid containing 1.93 grammes of “Ice”. 

3.  This quantity of “Ice” was found in the defendant’s trouser pocket after a search by a police officer on 11 January 2013.  This search took place outside No.232  Wan Chai Road, which is the building in which the defendant lived.  The police had stopped the defendant because they thought he looked suspicious, leading to the search of his person.

4.  The police found on the defendant 10,000-odd Hong Kong dollars and some small quantities of other currencies.

5.  The police then took the defendant to his home and conducted a house search.   This took place minutes after the stop-and-search on the street.

6.  In the defendant’s home in a drawer next to a bed, the police found several types of dangerous drugs.  These included “Ice”, ketamine, cannabis and some tablets containing either diazepam, cocaine or ketamine. 

7.  More specifically, there were four bags of a solid containing 2.26 grammes of “Ice”, a bag containing six tablets that contained traces of diazepam and one tablet containing 13 milligrammes of ketamine and 14 milligrammes of methamphetamine. In addition, there were five plastic bags containing a solid which contained 0.16 grammes of cocaine and 1.16 grammes of ketamine. In another plastic bag, the police found a solid containing 7.23 grammes of ketamine. The last two bags contained cannabis in a herbal form, which totalled 25.77 grammes.

8.  For Charges 1 and 2, there was a total of 4.204 grammes of “Ice” as well as 8.403 grammes of ketamine, 0.16 grammes of cocaine and 25.77 grammes of cannabis.

9.  There was also paraphernalia found that is normally associated with packing dangerous drugs.  These included two electronic scales, some resealable plastic bags and two rolls of adhesive tape.

10.  Under caution, the defendant admitted that all of the dangerous drugs belonged to him and that they were for his own consumption.

11.  Today, he has pleaded guilty to trafficking this quantity of dangerous drugs.

12.  The defendant is a 30-year-old man and a Thai national.  He came to Hong Kong in 2009.  He has his parents and a sibling living in Hong Kong already and until 2012 he worked as a chef earning $9,000 a month.  Thereafter, he has been living on savings.

13.  The defendant is not a man with a clear record in Hong Kong.  He has two previous convictions.  In 2009 he was fined for possession of an offensive weapon.  In 2012 he was sentenced to 3 months’ imprisonment for possession of dangerous drugs and possession of equipment intended to be used for taking dangerous drugs.

14.  He was released from prison on 30 June 2012.

15.  He was arrested for these offences some six months later.

16.  The estimated value of the cocktail of dangerous drugs in this case is approximately $7,176.

17.  I have heard mitigation put forward on the defendant’s behalf.  The best mitigation is his plea of guilty today and his cooperation with the police.

18.  I will take into account it is the first offence for trafficking in dangerous drugs in Hong Kong.

19.  The antecedent informs the court the defendant is not a drug addict and I have been told that is accurate.

20.  I have been told some of the dangerous drugs was for his own consumption, but I do not have details of the defendant’s drug abuse habits nor do I have evidence or details of his financial ability to purchase dangerous drugs for his own consumption. 

21.  The fact is, before his arrest, he had been unemployed for a period of time and had no income. 

22.  However, he had $10,000 cash on his person as well as a significant amount of dangerous drugs when arrested.

23.  He has pleaded guilty to trafficking today. 

24.  It all points to the defendant making money from trafficking in dangerous drugs.

25.  This is not a case where I can say there is a certain portion for self-consumption and a portion for trafficking.

26.  As I have said, there are four types of dangerous drugs and seven tablets the defendant was in possession of.

27.  The total quantity of “Ice” was 4.204 grammes, which if I followed the guideline for sentencing those that traffick “Ice”, I consider where up to 10 grammes of “Ice” is trafficked, this would attract a sentence of between 3 to 7 years, and I referred myself to the authority of the Attorney-General v Ching Kwok Hung [1991] 2 HLKR 125.

28.  For this amount of ice, mathematically speaking, I would consider a starting point of 4 years’ imprisonment appropriate.

29.  In addition, the total quantity of ketamine, I repeat, is 8.403 grammes.  Ketamine is a less potent drug than “Ice” and if I consider the guidelines of The Secretary for Justice v Hii Siew Cheng [2008] 3 HKC, I would consider a starting point of 3 years and 9 months appropriate. That authority says where between 1 to 10 grammes of ketamine is trafficked, a 2- to 4-year starting point would be appropriate.

30.  As far as trafficking cocaine is concerned, the court would look at the guidelines for trafficking heroin for guidance.  The Court of Appeal has made it clear the same guidelines for cocaine would apply to heroin.  Where up to 10 grammes of heroin or cocaine is trafficked, a starting point of between 2 to 5 years would be appropriate.

31.  I take into account the quantity here is 0.16 grammes of cocaine.

32.  The tablets and cannabis would only attract a starting point of a few months.  Their quantities are not significant.

33.  Where a defendant trafficks a cocktail of dangerous drugs, the court must consider the quantities of each different drug and the potency of the different drugs and consider which is the most serious drug.

34.  Here, “Ice” is the most serious drug.

35.  There are two approaches to sentencing cases of this nature and I have considered the two authorities of HKSAR v Wong Kin Kau [2010] 4 HKC 443 and HKSAR v Ko Ka Hing [2009] 4 HKLRD 856, where the Court of Appeal discusses the two approaches.  The Court of Appeal does stress the importance of considering the totality principle when coming to the appropriate starting point and I consider the combined approach appropriate here.

36.  As I said earlier, on a strict mathematical calculation, if there was only the “Ice” in this case, I would take a starting point of 4 years and if there was only ketamine I would take a starting point of 3 years and 9 months.

37.  I add here that there are no aggravating factors or mitigating factors that would lead me to substantially add to or deduct from an appropriate starting point, but I have considered mitigation put forward, the cooperation of the defendant and the fact he has no previous similar convictions.

38.  With those factors, I would normally lower the starting point slightly. 

39.  Here, to add the two starting points I have referred to together would result in a very significant starting point.

40.  Accordingly, having considered the two authorities I have referred to above in sentencing mixed cocktail drug cases, as well as the totality principle, I will take the starting point of 3½ years for the “Ice” and add a further 2 years to take into account the ketamine and small quantities of cocaine and cannabis, and come to a starting point of 5 years and 6 months.

41.  The defendant is entitled to a discount for his plea today, which would reduce that starting point to 3 years and 8 months.

42.  Defendant, please stand up.

43.  You face two charges but both were committed on the same day and I added together the “Ice” of Charge 1 to the “Ice” of Charge 2 to consider an appropriate starting point.

44.  Therefore,

(1) for Charge 1, I will impose a sentence of 2 years’ imprisonment;

(2) for Charge 2, I impose a term of imprisonment of 3 years and 8 months.

45.  I will order that both sentences be served concurrently.

46.  That is a total of 3 years and 8 months.