HKSAR v. POON HO-WAI

DCCC 461/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 461 OF 2016

-----------------

-----------------

-------------------------------------------

REASONS FOR SENTENCE

-------------------------------------------

1.  The Defendant has pleaded guilty before me to one charge of trafficking in a dangerous drug, namely 106.66 grammes of a solid containing 53.24 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.  The facts admitted by the Defendant reveal that at about 00.23 hours on 16 March, 2016, a team of police officers laying ambush at Kai Wong House, Kai Tin Estate, Kwun Tong spotted the Defendant walking towards Flat 1706. He was intercepted. He explained that he resided at Flat 1706 with his mother. The police officers gained entry into the flat using keys seized from the Defendant.  A house search was conducted and the dangerous drugs the subject matter of the present charge were found inside the Defendant’s bedroom in a blue basket containing a pink plastic bag containing two plastic bags containing the dangerous drugs in question. Apart from the dangerous drugs, there were 3 piles of resealable plastic bags, totally 243 pieces, and an electronic scale.  The Defendant was arrested for trafficking in dangerous drugs. Under caution, he claimed that the ketamine was for self-consumption, He repeated this in a subsequent video record of interview under caution.  The street value of the dangerous drugs was HK$14,506.  The Government Chemist confirmed that the 2 plastic bags contained a total of 106.66 grammes of a solid containing 53.24 grammes of ketamine, A photo album of 21 photographs were produced by agreement depicting the premises in question and the dangerous drugs that were found therein.  By his plea, the Defendant admitted that he was in possession of the dangerous drugs the subject matter of the charge at the material time and place for the purpose of unlawful trafficking.  I was satisfied beyond all reasonable doubt that the facts admitted by the Defendant supported the charge, and accordingly I convicted the Defendant on the charge that he faced.

Previous Convictions

3.  The Defendant’s criminal record dated back to 2004.  He has 7 previous convictions in 5 court appearances including 2 for drugs offences, his most recent being in 2013 for possession of a dangerous drug.

Antecedent Statement

4.  The Antecedent Statement was read into the record by the Prosecution. No issue was taken by the Defence on the contents of the Antecedent Statement. The Antecedent Statement disclosed that the Defendant is now aged 27 years. He was born in Hong Kong and educated to Form 2.  He is a drug addict and consumed ketamine every day.  He is single. He used to be a financial consultant before his arrest.  His last release from prison was in October, 2012.  He lived at the address where the dangerous drugs were found with his mother, aged 54, who was a courier. His father had passed away. The Defendant himself said that he was not a financial analyst but rather a property agent and he also did some painting jobs.

Mitigation

5.  Defence Counsel submitted that the greatest mitigation herein was the Defendant’s plea of guilty from the outset. She submitted that the dangerous drugs were purchased for the Defendant’s self-consumption, as he was addicted to dangerous drugs. The Defendant claimed that 50% of the seized dangerous drugs were for his own consumption.  He was employed at the time of his arrest at a construction company. Previously he had held two jobs – with a construction company and with a property agency but was fired from the property agency.  A letter from the Hong Kong Property Services (Agency) Ltd. dated 10-8-2016 confirmed he had worked there from November to December 2015 at a monthly income of $10,000. A letter from Shun Yik Engineering Ltd. confirmed he was employed there as a casual worker for $800 a day from October 2015 to March 2016.  Counsel submitted that he could support his drug habit because he was gainfully employed.  But because of unhappiness at losing his job at the property agency, he consumed dangerous drugs.  Counsel also submitted that he had been left traumatized by his conviction in 2006 for manslaughter – someone had died and he was full of sorrow. He was ostracized by some members of his own family.  His relationship with his mother was distant. He took ketamine to deal with his feelings.  After his arrest and incarceration for the present offence, he learned that his girlfriend was pregnant and he is now the father of a baby boy – a photograph of the baby was submitted. Counsel submitted that he has had time to reflect whilst in custody – he wants o be a good father and a better son. Photographs of the Defendant with his paternal and maternal grandmothers and his band were submitted.  Counsel also submitted various letters from the Defendant and his mother and a cousin and a friend who was a social worker, all seeking leniency on behalf of the Defendant.

6.  Mr. Poots for the Prosecution fairly accepted that some of the dangerous drugs would be for the Defendant’s self-consumption as he had said in the video record of interview under caution. But he was unable to accept that as much as 50% would be for the Defendant’s own consumption in the absence of supporting evidence.

7.  After hearing Counsel in mitigation, I adjourned sentence until today, calling for a Background Report and remanding the Defendant in custody.  That report is now before me, and the Defendant through his Counsel has confirmed the contents of the Background Report. Ms. Panesar on behalf of the Defendant has urged the Court to consider the DATC – she submits that there has been a change of his personal circumstances – he is now a father and wants to be treated for his addiction – he wants to be a filial son and a good father.  He has the support of his mother and girlfriend, as well as Mr. Fu, his friend who is a social worker. Prior to his arrest, he had attempted to seek treatment for his addiction.

Sentencing Considerations

8.  In the Secretary for Justice v Hii Siew Cheng & Anor. [2009] 1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in ketamine. For trafficking 50 to 300 grammes of ketamine, a term of imprisonment of between 6 to 9 years is called for. Defence Counsel accepted that the quantity of dangerous drugs here falls within this band.

9.  Although Counsel has urged me to consider the DATC and treatment for the Defendant’s addiction to dangerous drugs, in my view the DATC is not appropriate for an offence of this nature – a paramount consideration must be deterrence.  The Defendant will receive treatment in prison for his addiction, and I hope that with the support of his family and friends, he will be able to rid himself of his addiction to dangerous drugs.  In the instant case, the ketamine involved is 53.24 grammes. Sentence follows the quantity of drugs.  For this quantity, I consider a starting point at the lower end of the tariff guideline would be appropriate, and I take as a starting point 6 years imprisonment, that is 72 months.

10.  The Defendant now admits that he was in possession of the drugs in question for trafficking, although in mitigation Counsel for the Defendant submitted that 50% would be for his own consumption. As Mr. Poots for the Prosecution very fairly said, the Prosecution did not take issue that some of the dangerous drugs would be for self-consumption. This was what the Defendant had said when he had been interviewed under caution.  It is clear that the Defendant is a drug addict.

11.  In HKSAR v. Chow Chun Sang, [2012] 2 HKLRD 1121, the Court of Appeal held at p. 1126:

“ in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organised and premeditated, and the background and criminal record of the defendant.”

The Court of Appeal did not set down what percentage would be appropriate but held it would depend on the facts of every case.

12.  I have taken into account that the Defendant is a drug abuser and that some of those drugs would have been for his own consumption.  There was no direct evidence of sale of any drugs. Nor is there any evidence that the Defendant was involved in premeditated and organized trafficking. I have borne in mind the quantity and packaging of the dangerous drugs in question. I have borne in mind too that the Defendant worked only on a casual basis.   I have also borne in mind the latent risk of the drugs for self-consumption falling into the wrong hands.  Of course, any determination of a percentage must involve an element of speculation and must of itself be an approximate figure.

13.  Looking at those features of the case, I shall discount the starting point by 11 months – a discount of about 15.27% - to reflect that some of the dangerous drugs were for the Defendant’s own consumption. I have decided that the appropriate starting point for this offence is therefore one of 5 years and 3 months’ (i.e. 63 months) imprisonment.

14.  The Defendant has pleaded guilty to the charge and he is entitled to a discount of one-third to reflect that.  I have considered all that has been urged by Counsel on behalf of the Defendant as well as the contents of the various letters in mitigation written by the Defendant and others.  Save for his plea of guilty, there is really little else in mitigation before me.

15.  He is therefore sentenced to 3 years and 6 months’ (42 months) imprisonment.