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DCCC1341/2010
IN THE DISTRICT COURT OF THE
HONG KONGSPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1341 OF 2010
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Before: |
H H Judge A. Wong |
Date: |
10 February 2011 at 11.36 am |
Present: |
Miss Lisa Go, PP, of the Department of Justice, for HKSAR
Mr Oliver Davies, instructed by Wong & Co., assigned by the Director of Legal Aid, for the Defendant |
Offence: |
Trafficking in a dangerous drug (販運危險藥物) |
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Reasons for Sentence
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1. The defendant was convicted upon his guilty plea of one charge of trafficking in a dangerous drug.
2. In sentencing, I take into account the whole circumstances of the case, including its nature and facts, in particular, the nature and quantity of the dangerous drugs concerned, background of the defendant and mitigation put forward on his behalf by learned defence counsel.
3. The facts of the case are simple. When police officers gained entry into a flat in a public housing estate, the defendant was seen throwing some white powder out of the window. Upon search of the flat, 8 transparent plastic bags and 2 paper packets each containing ketamine were found. Also found were items such as some packing equipment, two mobile phones and an electronic scale. A plastic bag containing ketamine was also found outside the window on the awning of the flat. All these ketamine formed the subject matter of the charge.
4. Under caution, the defendant admitted that all these “K Chai” belonged to him. In a subsequent interview, he admitted that he bought the ketamine and took it to the flat for packing before bringing it home. He would sell the dangerous drug to his close friends upon their request. In doing so, he would pack the ketamine into small packets.
5. The defendant is not yet 20 years of age when he committed the offence. He is single and living with his father and stepmother. His natural parents divorced in 2003 when the defendant was about 13 years old. He had received education up to Form 5. He had worked as a lifeguard. His parents wrote to show support of the defendant and asked for a lenient sentence.
6. Learned defence counsel stressed that the defendant is now remorseful. He committed the offence out of single-mindedness and is now determined to turn over a new leaf. Whilst I note what learned defence counsel told the court, I also note that it was the defendant’s own admission that he took the initiative to engage in this trafficking exercise. The quantity of dangerous drug in his possession was quite substantial. It cannot be said to be one of those typical cases where a naïve young person, often himself drug dependent, being exploited into engaging into trafficking activity.
7. That said, I am prepared to accept what the defendant told the court in his letter that he committed the offence out of greed and influence of his undesirable peers.
8. The dangerous drug the defendant trafficked in was ketamine. The total quantity of narcotic content of the dangerous drug in question was 93.65 grammes. In the case of SJ v Hii Siew Cheng, CAAR7/2006, the Court of Appeal indicated a tariff for sentencing for traffickers in such quantity of the dangerous drug. If the quantity of ketamine trafficked in is 50 to 300 grammes, the sentence to be considered is 6 to 9 years’ imprisonment.
9. In all the circumstances, I am of the view that an imprisonment term is warranted. Despite the defendant is only 20 years of age, the court has consistently held that for the offence of trafficking in dangerous drugs, unless it is a case of extreme youth, youth generally is not a reason to reduce the sentence. Deterrence is an important factor in sentencing for this nature of offence and the court should not only give regard to the rehabilitation needs of a defendant. The defendant in the present case is not a person of extreme youth.
10. The defendant claims that about half the quantity of the ketamine found would be for his own consumption. Having regard to the stance of the prosecution, I informed learned defence counsel that the court would not be prepared to accept such an assertion only upon submission of counsel. Having provided the necessary advice to the defendant and taken instruction, learned defence counsel informed the court that the defendant would not adduce evidence in that regard.
11. Having considered the whole of the relevant evidence, whilst I am satisfied that the defendant would keep some of the drugs found for his own consumption, I found that the primary purpose of possession of the ketamine was trafficking and most of the quantity in the defendant’s possession must be for that purpose. In this regard, I have considered cases such as HKSAR v Wong Suet Hau, CACC366/2000, and HKSAR v Chong Chee Meng, CACC315/2008.
12. I will take into account that certain proportion of the ketamine was to be kept for the defendant’s own consumption, but the proportion would not be high. He was obviously in the business of trafficking. He said nothing under caution about keeping some of the dangerous drug for his consumption, thus reflecting the low priority of this purpose in his mind. In any case, the latent risk factor must not be ignored and, in my judgment, the risk is high in this case.
13. Having considered the whole circumstances including mitigation, I do not consider there exists sufficient reasons not to follow the tariff though a lower starting point will be adopted, to take into account the self-consumption factor.
14. In R v Lau Tak Ming, the Court of Appeal said that within the suggested bands, the court should take into account the following factors: the profit which may reasonably be expected, the number of packets, the type of mixture containing the narcotics, the degree of involvement of the offender and his previous history of narcotic offences.
15. In all the circumstances, taking the assertion of self-consumption into account, I consider a starting point of 6 years appropriate. Defendant pleaded guilty, he is entitled to a one-third discount for this reason. I am prepared to give the defendant a further discount of 3 months for his relatively young age, that this is his first conviction and as a token to encourage him to rehabilitate. I accept the defendant is now remorseful and determined to turn over a new leaf.
16. Defendant, I hope you will realize that this is really your last chance and if you do not make a good endeavour to reform, your life will be ruined.
17. Based on the matters aforesaid, I sentence the defendant to 3 years and 9 months’ imprisonment.
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