HKSAR v. CHAN KIT MAN, TERRY

DCCC936/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 936 OF 2009

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Reasons for Sentence

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1.  The defendant pleaded guilty to a charge of possession of dangerous drugs, namely 13.19 grammes of a powder containing 11.18 grammes of ketamine.

Facts of the case

2.  At about 9.10 pm on 20 May 2009 police officers observed the defendant acting furtively at the car park outside Chung Kwan House. The defendant was intercepted and the ketamine was found in his underpants during a search.

3.  The defendant said under caution that the drugs were for his own consumption. The defendant further admitted under caution that the drugs were purchased from Ah Kau at $800 three hours before the arrest. He purchased them in bulk, as it was cheaper. When he was arrested, he was on his way to look for his friend.

Criminal Record

4.  The defendant has two previous convictions. One is two counts of indecent assault in 2000 and he was sentenced to Detention Centre. In 2008, he was sentenced to 8 months’ imprisonment for a charge of conspiracy to defraud.

Mitigation

5.  I called for a DATC Report, and the report says that the defendant is not a drug addict anymore and therefore he is not suitable to be sentenced to DATC.

6.  The report also tells me more about the background of the defendant.

7.  The defendant is 27 years of age, he was born in Macau. He came to Hong Kong with his family and reunited with his father in 1989 in Hong Kong. The defendant attended school up to Form 5 and thereafter he took some casual works such as restaurant worker, stall keeper, factory worker and shop attendant. Recently he earned $20,000 per month.

8.  The defendant and his mother seldom communicate with each other. His mother does not know his life outside their home.

9.  The defendant started to smoke cannabis in 2007. He also sniffed ketamine about two times a month, each time $100 to $200 on each occasion. His last dosage of drugs was in September 2009.

10.  The defendant also wrote a letter to this court saying that he has managed to get rid of his drug addiction habit during the 5 months detention. His girlfriend is also a drug addict. He persuaded her to quit this drug habit as well. He is now remorseful.

Sentence

11.  Mr Lou provides me with a recent authority of Yuen Yat Hung, CACC59/2009, of possession of dangerous drugs of 27.15 grammes of ketamine and the purity is 22.88 grammes. The Court of Appeal says that including the latent risk factor, after one-third discount, a total sentence of 16 months is appropriate.

12.  The Court of Appeal in Wan Sheung Sum’s case, CACC438/1999, considered that a three-stepped approach in this type of offence and accepted that the starting point should be in the range of 12 to 18 months.

13.  In 2008, the Court of Appeal also laid down guidelines for trafficking of ketamine. It shows that the court takes a very serious view as to sentencing in trafficking of ketamine as this type of drugs is commonly abused by the younger generation.

14.  A sentence for punishment and deterrence is also necessary for this type of offence, therefore, when I pass sentence on the defendant, I bear in mind of all the mitigating factors including the fact that the defendant has pleaded guilty to the charge, and also the quantity of the drugs involved.

15.  In the present case, the defendant was in possession of 11.18 grammes of ketamine. I adopt a starting point of 12 months’ imprisonment.

16.  I also consider the latent risk factor, that the defendant was a drug abuser at the time of the offence. He has connection with other drug abusers such as his girlfriend. Although he was reported in the DATC that he earned $20,000 per month as a courier on a casual basis to deliver goods between Hong Kong and China, I have great doubt of his earnings.

17.  In any event, there is high risk that this quantity of drugs would go into the wrong hands and be redistributed in the society again. I therefore enhance the sentence by 50 per cent, and that is another 6 months, a total of 18 months.

18.  I take into account that the defendant pleaded guilty to the charge and I give one-third discount, and that is 18 months reduced by 6 months, which comes to 12 months.