HKSAR v. KWOK CHUN WA

DCCC 244/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 244 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to trafficking in a dangerous drug. The date of the offence was 29 December 2015, and the amount of drugs is 20.70 grammes of a powder which contained 7.47 grammes of ketamine, so the quantity of narcotic, which is the relevant quantity, is 7.47 grammes.

2.  The facts of the case have been agreed by the defendant, and they are, simply stated, this was a stop and search of the defendant occurring in the evening of 29 December last year, and the defendant was stopped at the lift lobby of a building in Tuen Mun.

3.  On search, the drugs were discovered on the defendant.  They were found to be broken down into two resealable transparent plastic bags which contained 7.47 grammes of ketamine.  They were found in the defendant’s pocket.  Also a phone and some cash was also found in the defendant’s possession.

4.  On arrest and caution, the defendant immediately said that one packet of the “K chai”, which means ketamine, was for his self‑consumption, and the other was for another person.  That was later post-recorded and confirmed by the defendant.  Later on, he again reiterated that one packet of ketamine was for his consumption and the other packet had been obtained for his friend.

5.  The estimated street value of all the ketamine is $2,650.  Neither the facts nor the Government Chemist Certificate say how the drugs were broken down within the two resealable plastic bags and what the relative amounts were.

6.  The defendant has admitted both his antecedents and his criminal record.  The antecedents show that the defendant is aged 26. He has been educated up to Secondary 4 level.  He worked as a property agent in the past, with a monthly salary of $20,000 at the time of his arrest.  He has told the interviewing officer for the antecedents statement he had been addicted to ketamine for 10 years.  There is some support for that in the criminal record.  The defendant has been convicted on three previous occasions, two offences involving Offences Against the Public Order Ordinance which led to him being sent to rehabilitation centre back in 2007 and 2008, but more recently, in 2012, convicted for the offence of possession of a dangerous drug.  It was his first offence for that, and so he was fined $2,000 on that occasion, although the defendant says that he had been a consumer of the drug for a much longer period.

7.  As far as mitigation is concerned, the defence refers to the fact that a portion of the drugs, and they say it must be taken as a significant portion of the drugs, were for the defendant’s own consumption.

8.  The defendant has also provided the court with a number of letters, a letter showing the defendant’s remorse, and also from his previous employer.  Of some significance is a letter from Mr Ho, who is the social worker at Caritas, and he says that as recently as 2014 the defendant was voluntarily seeking assistance for his drug addiction, and attended drug rehabilitation.

9.  Clearly that was not successful at this point, but it does show a realisation by the defendant that his drug addiction is a problem, and the fact that he voluntarily, and without being compelled to by the authorities, sought to deal with his addiction himself, that is a positive signal, and it is to be hoped the defendant can perhaps build on that in the future after his release from custody.  The defendant himself acknowledges in his letter to me that he will serve a sentence of imprisonment.  He has a realistic approach to his future.

10.  As far as the approach to sentencing is concerned, the sentence for trafficking in the dangerous drug ketamine, the starting point for sentence is largely determined by the guideline sentences.

11.  The quantity of drug that I am concerned with here is 7.47 grammes of ketamine.  That means that the quantity falls within the guideline of 1 to 10 grammes of ketamine, and that is a figure of between 2 to 4 years’ imprisonment.  This is a discretionary figure, but is largely mathematically determined by the quantity of drug in order to achieve consistency.

12.  Taking the figure of 7.47 grammes of ketamine, it would appear to me that the appropriate initial starting point for sentence is one of 3¼ years, which is 39 months’ imprisonment.

13.  I must now consider if there are any aggravating factors that do not appear on the face of the facts agreed by the defendant to be any aggravating factors.  I must now consider whether there are any mitigating factors that might reduce that starting point for sentence.

14.  The clear mitigating factor is the defendant’s self‑consumption of the drug.  If this is a significant proportion of the drug, it can lead to a reduction in the starting point.

15.  The defendant, in his records of interview and cautioned statements, has always said that one packet was for himself and the other one was for a friend.  Although the quantities are not determined and cannot be determined from the Government Chemist Certificate, from the Bar table I have been told that it was the understanding of the defendant that the larger quantity was for his friend.

16.  The approach I shall take is to assume that although the drugs were not broken down, they would be broken down into not radically different portions.  The authorities show that where there is a reduction for self-consumption that involves a significant portion of the drug, that figure can range between 10 to 25 per cent of the initial starting point, and the calculation of that figure is largely discretionary, but will depend, to a certain extent, on the quantity or proportion of the drug that the defendant would have consumed himself.

17.  In this case, taking into account all the factors that I have before me, which is the admission of the defendant, the lack of any equipment for further trafficking the drug on search of his residence, and the defendant’s statement as to what he would have done with the drug himself, I have decided that the reduction for this particular head of mitigation should lie between 10 to 15 per cent of the initial figure, and I shall capitalise that as a figure of 6 months’ imprisonment.

18.  That brings the starting point of sentence down to 33 months’ imprisonment.  That figure is subject to a one‑third deduction for the defendant’s plea of guilty, which leads to an end figure of 22 months’ imprisonment, and that is the sentence that will be imposed: one of 22 months’ imprisonment.