HKSAR v. FONG WAI KEUNG

DCCC314/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 314 OF 2011

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Reasons for Sentence

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1.  I have just addressed on the facts of this case. The defendant is convicted as charged, but I accept his saying that the bigger bag was for his own consumption, while the smaller bag was bought by him for his friend and he was to give that smaller bag to his friend.

2.  I will sentence him on that basis.

3.  The defendant is aged 24.  He had one previous conviction in 2008.  In one case he was convicted of two charges of possession of dangerous drugs.  He was given two terms of imprisonment, both suspended for 24 months.  That means those suspended sentences only expired by late August 2010.  Four months later, he was arrested for the present offence.

4.  Although the defendant bought the smaller bag for his friend without any intention to make a profit, it is still trafficking.  Some say it is social trafficking, but social trafficking is not necessarily less serious than commercial trafficking.

5.  In fact, according to the defendant, he had been purchasing dangerous drugs for the same female friend since November 2010, so his situation cannot be regarded as that kind of normal social trafficking we sometimes see in court, which just refers to a one-off situation involving minute dosage.

6.  I am sure the strict law against trafficking is to curb trafficking of this kind, as committed by the defendant in the present case.  Making profit is just an aggravating factor.

7.  In such premise, this court is entitled to follow the sentencing guidelines laid down by the Court of Appeal in the case of Hii Siew Ching, CAAR 7/2006, and Wong Yat San, CACC 126/2007.

8.  According to the quantity of the smaller bag which contained 3.91 grammes of pure ketamine, the starting point for this component of the charge should be one of 2½ years’ imprisonment, but a proper sentence in this case must not neglect the bigger bag, which had a purity of 12.76 grammes of ketamine.

9.  The defendant had one previous conviction of two charges of possession of dangerous drugs in 2008.  The quantity of pure ketamine in the weight of 12.76 grammes cannot be said to be small.

10.  Without considering the latent risk element, the starting point for this bigger bag should be one of 9 months’ imprisonment.

11.  Defence counsel says the latent risk was small, if not minimal.  I do not agree.  According to the defendant, that quantity in the bigger bag was sufficient for his use for a month. 

12.  What is worse, he had been helping his female friend to buy drugs for several months, so even though he had the bigger bag for his own consumption, the latent risk of his having that bigger bag in the circumstance was not small; it was high.  That is, if a friend of the defendant asked the defendant to give him some of his drugs, the defendant would be most tempted to do so.

13.  In the circumstance, I would enhance the 9 months’ starting point for the bigger bag by one-third and raise it to  12 months’ imprisonment.

14.  Thus, the final starting point for the whole charge to which the defendant has pleaded guilty as trafficking would be one of 3½ years.

15.  I give the defendant one-third discount for his plea of guilty to this charge.

16.  I sentence him to 2 years and 4 months’ imprisonment.