HKSAR v. SHEK TSZ HO

DCCC 761/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 761 OF 2014

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REASONS FOR SENTENCE

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1.  The defendant (male)(aged 27 years) appeared before me this morning and pleaded guilty to a single charge of trafficking in a dangerous drug. The subject matter of the dangerous drug is 32.21 grammes of a powder containing 20.75 grammes of ketamine.

Facts

2.  This is a simple stop-and-search case.  On 25 June 2014 at around 2150 hours, during an anti-dangerous drugs operation, a police officer noticed the defendant acting furtively and thus intercepted him outside Ground Floor, No 38 Sai Kung Main Street, Sai Kung, New Territories in Hong Kong.

3.  Upon search, three separate transparent resealable plastic bags containing suspected dangerous drugs were found all in the right front pocket of the defendant’s pants.  The defendant was immediately arrested and cautioned.  Under caution, he stated that the three packets of ketamine were for sale to “Bor Jai” to earn some money.  He further admitted that he was selling to “Bor Jai” for HK$3,000.

4.  In the subsequent video-recorded interview, the defendant further admitted that since he was unemployed, he had to earn some money for living expenses.  He further told the police that on the day when he was arrested, in the afternoon, he first bought the drugs from another person in Mong Kok for the sum of $2,500.  Later in the same day, in the evening at around 9 pm, the defendant received an unknown call from “Bor Jai”, who asked the defendant to sell him ketamine.  The defendant told the police that he was going to sell the three packs of ketamine seized from him to “Bor Jai” for $3,000 but before he could do so, he was already intercepted by the police.

5.  One of the mobile phones seized by him, which is the larger Nokia phone, he said was the one he used to call “Bor Jai” and also receive the call from the seller.

6.  The separate weight of the three packets of ketamine found from the defendant, according to the analysis, is 8.94 grammes, 8.97 grammes, and 2.84 grammes respectively.  The street value of all three packets of ketamine is estimated to be HK$3,929.62.

7.  Cash of HK$1,220 and two mobile phones were found on the defendant.

Background of the defendant

8.  As said, the defendant is now aged 27.  He has a clear record.  He had completed Form 5 education.  He used to work as a restaurant manager for three years between 2010 to 2013, earning a monthly income of $15,000.  After that, he had worked in a store operated by his father, earning a daily wage of $600.  The defendant is the only child in the family.  He is living together with his grandfather and grandmother in Sai Kung.  His grandfather is a fisherman, and I was told he also helped his grandfather during the weekend.

Mitigation

9.  Mr Lawrence Law, counsel for the defendant, stressed the fact that the defendant had a clear record and has hitherto good character, and he had pleaded guilty to the offence and confessed his crime to the police, which is an indication of his remorse.  He had support from his family and he had a steady work pattern and Mr Law urged the court to take this all into account when sentencing the defendant.

10.  On behalf of the defendant, Mr Law however told the court that of the three packets of ketamine which were seized from the defendant during the arrest, one larger plastic bag containing 8.94 grammes of the ketamine was indeed for his self‑consumption.  To support this proposition, Mr Law has submitted to the court three letters.  One is a letter from Rainbow Rehabilitation Centre which had confirmed that the defendant had indeed sought help from the social worker of the centre to kick his drug habit between March 2013 to November 2013.  The second letter is from Caritas Wong Liu Nam Centre which confirmed that the defendant had voluntarily participated in their residential drug treatment programmes.  However, according to the letter, the defendant only stayed there for a brief period, just over 10 days, and then he left on his own accord on 23 April 2013.  Finally, there is a letter from the Correctional Services Department issued by the Lai Chi Kok Reception Centre which has stated that the defendant had claimed to the Correctional Services that he has been abusing drugs and in particular ketamine for 10 years.  The letter told the court that an urine specimen collected from him on his reception to the centre has been tested which showed negative results to a number of different kinds of dangerous drugs, including amphetamine, cannabis, cocaine and opiate.  However, there is no test for ketamine conducted in the Lai Chi Kok Reception Centre.

11.  Mr Law urged the court to accept the version put forward by the defendant and to take into account that a good number of quantity of ketamine was in fact for his self‑consumption.

Sentencing considerations

12.  Trafficking in a dangerous drug is of course a very serious offence. Anyone involved in this kind of criminal activity, once caught, would expect no mercy from the court.  The defendant is not a youngster and he can only expect an immediate custodial sentence.  The dangerous drug that he trafficked in this case is ketamine.  Ketamine has been widely abused by people, especially young people, in Hong Kong in recent years.

13.  According to the Court of Appeal’s sentencing tariff laid down in the case Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323, for trafficking in the quantity of ketamine between 10 to 50 grammes, the sentence range should be 4 to 6 years’ imprisonment.

14.  Accordingly, according to the Government Chemist analysis result in this case, for the whole quantity of ketamine in this case, the appropriate starting point will be about 4½ years.

15.  I now turn to the submission by the defence that 8.94 grammes of ketamine in one of the packets were indeed for the defendant’s self‑consumption. The Court of Appeal has made it very clear in the case of Chow Chun Sang [2012] 2 HKLRD 1121 in paragraph 19 that:-

“We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, furthermore, and the background and criminal record of the defendant. ”

16.  The Court of Appeal also stressed that the court should not overlook the latent risk that the portion of the drug intended for a defendant’s own consumption may be given or sent out to the others.  In HKSAR v Wong Suet Hung [2012] 1 HKLRD 69 at 80E, the Court of Appeal emphasised that the gravity of the trafficking is not mitigated in those cases where the trafficker is trafficking in order to fund drugs intended to feed his own addiction.

17.  Considering the claim by the defendant that one out of the three plastic bags containing 8.94 grammes of the ketamine is for his own consumption, this represents a large portion of the quantity of the total drugs in question.  However, I note what the defendant had told the police was that all the three packets of ketamine were for sale.  Nowhere in his video‑recorded interview did he further clarify the position.  What is more, in the Summary of Facts, which he has admitted this morning, in paragraph 9, the defendant accepted that at all material times he was in possession of all three packets for the purpose of unlawful trafficking.

18.  In the antecedent statement which has been produced by the police, which has also been admitted by the defendant, it clearly stated that the defendant was only addicted to ketamine since 2013.  However, according to the Correctional Services Department letter which I have referred earlier, the letter stated that he had told the Correctional Services that he had abused ketamine for 10 years.  The two letters from the voluntary drug addiction withdrawal organisations all confirmed that the defendant only sought help or participated in a drug treatment programme in the year 2013, which caused me to have a great reservation in accepting the claim by Mr Law from the Bar table in its entirety.

19.  To be fair to the defendant, having looked at the two letters from the voluntary organisation, the court will accept that the defendant, albeit that he had a clear record and has not had any trouble with the law before, was nevertheless a person with a drug problem.  When I clarified or queried with Mr Law as to the conflicting versions that the defendant had put forward to the police and to the Correctional Services, Mr Law simply replied that the defendant was just being nervous when he was questioned by the police.

20.  I made it clear to Mr Law that the court cannot accept the defendant’s attempt to reduce his criminality by claiming that a large number of quantity of the drug was for his self‑consumption so lightly.  I have also queried or inquired with the defence whether the defendant will consider calling any evidence to support his claim or even go to the witness‑box to testify on this matter.  After giving time for the defendant to consider his move, it is his considered decision not to call any further evidence or to testify on this matter.

21.  I therefore came to the conclusion that while I should give some credit for the fact that he is a drug addict and therefore I can give him the benefit of the doubt that part of the quantity of the drug is for his self-consumption, I am not prepared to accept his claim that as much as 8.94 grammes of ketamine contained in one packet was for his own self‑consumption.

22.  Thus from the starting point of 4½ years, which is the usual starting point, I shall reduce the sentence by only 6 months, which already represents more than 11% of the starting point.  The starting point is therefore reduced to 48 months.

23.  The defendant pleaded guilty to the charge, for which he should be entitled to the usual one-third discount.  Apart from that, I can see there is no other mitigating factor.

Order

24.  After the one‑third discount, for this offence, the defendant is sentenced to 32 months’ imprisonment.