DCCC1082/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1082 OF 2010

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Reasons for Sentence

1.  The defendant faces 3 charges. Charge 1 is trafficking in a dangerous drug, charge 2 possession of equipment fit and intended for the inhalation of a dangerous drug and charge 3 is possession of a dangerous drug. The defendant pleaded guilty to all 3 charges, admitted to the summary of facts and was duly convicted.

Facts

2.  The defendant was stopped by Police officers on 4^th August 2010. He was brought back to his home nearby where among other things, 1 plastic box with 4 plastic bags each containing a powder was found, an electronic scales with a cover with traces of a suspected dangerous drug, 2 rolled $20 banknotes containing white powder, one paper bag containing 186 plastic bags and the defendant’s wallet were found on the floor of the room of the defendant.

3.  The defendant admitted under caution that the 4 plastic bags belonged to him and that he used the electronic scales to weigh the Ketamine. He further admitted that the 186 plastic bags were used by him to pack the Ketamine for onward sale to other people. He also stated that he used the 2 rolled up $20 banknotes to inhale Ketamine. The defendant was arrested for the offence of trafficking in dangerous drugs.

4.  The defendant was then searched and from the right front pocket of his jeans were found another plastic bag with a powder inside. Under caution, the defendant said the substance in the plastic bag was for his own consumption.

5.  In a subsequent video recorded interview the defendant confessed that the powder found inside his home and on his person were Ketamine and that the drugs belonged to him.

6.  Government chemist confirmed the narcotic contents of the white powder found inside the room, on the defendant, on the cover of the scales and the banknotes as being Ketamine. The estimated street value of the Ketamine found inside the room and on the defendant is approximately $2,000 and $250 respectively.

Previous

7.  The defendant has 2 previous convictions, one was for assault occasioning actual bodily harm in October 2007, and the other for robbery in October 2008 when he was sentenced to the Detention Centre.

Mitigation

8.  The defendant is 21 and was born in china. He is educated in Hong Kong up to F.4 level. At the time of arrest he was unemployed. He was last discharged from detention on 17^th February 2009. The defendant claims to be a drug addict but is of otherwise good health. He is living with his parents in Kwai Chung. They are working as cleaning workers. The defendant has 4 elder sisters and the defendant is the youngest. 3 of his sisters are now living in China.

9.  The defendant worked as a waiter in a Japanese restaurant after quitting school. Prior to the defendant’s arrest he was working as a construction worker earning $8,000 per month. The defendant contributed $3,000 to his family.

10.  Mr. Mui submitted that the defendant is the only son of the family, a bit spoiled by the parents. After quitting school, he got associated with some bad peers and therefore he was led astray by his friends and committed the criminal offences. After the present offence, the defendant consolidated his bonds with his parents. With the assistance of the pastor in the church of the defendant’s sister, the defendant decided to turn a new life after release from prison.

11.  Mr. Mui further submitted 5 letters of mitigation, which included a letter written by the defendant himself, his father, his sister, his friend and his pastor.

12.  In relation to charge 1, Mr. Mui for the defendant submitted that the guidelines in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006 applies and that in our present case since the amount involved is 16.1g of Ketamine, Mr. Mui submitted that the proper starting point should be 48 months’ imprisonment.

13.  In relation to the 2^nd charge, it is Mr. Mui’s submission that the proper starting point for possession of equipment fit and intended should be 3 months’ imprisonment.

14.  In relation to the 3^rd charge, Mr. Mui relied on the magistracy appeal case of HKSAR v Lin Shing Chun Michael, HCMA 308/2007. In Lin Shing Chun Michael, the appellant was stopped and searched by Police officers and 20 packets of powder were found on him. The total narcotic content involved was 4.87g of Ketamine.

15.  The learned trial magistrate initially imposed a DATC order on the appellant. It later transpired that just 4 days earlier the defendant was sentenced for theft to 6 months’ imprisonment. The DATC order was set aside upon review.

16.  At paragraph 5, it was stated that the magistrate adopted a starting point of 6 months’ imprisonment, and then discounted “by three months” to reflect the guilty plea. There is no explanation why a bigger discount was given than the usual 1/3, which would have led to a sentence of 4 months’ imprisonment instead of 3.

17.  I suspect it was a typographical error and that the magistrate had in fact adopted a starting point of 9 months and not 6 months’ imprisonment. This is supported by paragraph 6 when the learned Deputy High Court Judge explained his reasoning and said that “the nine months starting point was in no way excessive bearing in mind the number of packets involved…” Also, if the starting point was 9 months then the discount would have been by 3 months and the 2^nd sentence in paragraph 5 would make more sense.

18.  The learned deputy Judge went on to confirm that a wholly consecutive sentence was appropriate given that the theft was committed whilst the appellant was on bail for the drug offence. The appeal against sentence was dismissed. So instead of the 6 months starting point that Mr. Mui said the court had upheld, it was in fact a 9 months starting point that was upheld. Mr. Mui submitted that the amount of Ketamine involved in our present case is less than that of this case and so the starting point should be something like 3-4 months’ imprisonment. In view of the misunderstanding of the starting point, I think I can proceed to say that Mr. Mui would submit that the proper starting point for charge 3 is 4-5 months’ imprisonment.

19.  I sought the assistance of Mr. Mui for the case of HKSAR v Mo Cho Tik [2001] 1 HKC 261 where the Court of Appeal was of the view that in cases of simple possession, the usual sentence should be that of between 12-18 months’ imprisonment. Mr. Mui did not argue against the principle but chose to emphasize that the sentences of charge 1 and 3 should be made concurrent.

Sentence

20.  The defendant is 21 years old. The offence of trafficking in dangerous drugs is an excepted offence and as such jail needs not be the last resort when dealing with someone of his age. Furthermore, the age of the defendant does not fall within the group of “extreme youth” and so would not in itself be a mitigating factor.

21.  As Mr. Mui rightly pointed out, the case of Hii Siew Cheng applies. I find however that a proper application of the guidelines sentence would lead us to a starting point of 51 months’ imprisonment. There are no mitigating factors other than the defendant’s guilty plea and therefore nothing to allow me to depart from the guidelines.

22.  There is an increasing trend of young people committing offences of trafficking in Ketamine. The court must send out the message that young people who choose to take the risk will have to bear the full consequences of their action.

23.  In relation to charge 1, I will adopt a stating point of 51 months’ imprisonment; reduce it by one third in recognition of the defendant’s guilty plea to 34 months’ imprisonment.

24.  In relation to charge 2, I will adopt a starting point of 3 months’ imprisonment, reducing it to 2 months in recognition of the defendant’s guilty plea.

25.  In relation to charge 3, in accordance with the view of the Court of Appeal in Mo Cho Tik and in view of the circumstances of the case, I will adopt a starting point of 12 months’ imprisonment, reducing it to 8 months in recognition of the defendant’s guilty plea.

Totality

26.  The defendant is 21. Although he is not of a clear record, he had never had a drug related conviction. Bearing in mind the principle of totality, I will order 4 months of the sentence in charge 3 to be served consecutively to the sentence in charge 1 and the sentence in charge 2 to be served wholly concurrently to the sentences in charge 1 and 3.

27.  The defendant is therefore sentenced to a total of 38 months’ imprisonment.