HKSAR v. TSE KA NGAI

DCCC 662/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 662 OF 2014

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is ketamine.

Summary of Facts

2.  About 2:00 am on 16 April 2014, PC 7878 (PW1) and PC 7032 (PW4) entered the premises situated at Ground Floor, No.45 Lane 6, Po Sheung Tsuen, Sheung Shui ("the Unit") to investigate since the Unit aroused their suspicion.

3.  The defendant and a female were found chatting at a mahjong table; and 2 males, in the room on the right.  The Unit has 2 rooms.  The defendant was observed to be nervous; he kept looking at the room on the left ("the Room").  PW1 tried to open the door of the Room, but it was locked.  The defendant and the other 3 persons claimed not having the key to the Room.

4.  PW1 managed to open the door of the Room.  Upon search, the following items were found in a drawer of the cabinet in the Room :-

(i) 1 cigarette box containing (a) 1 transparent resealable plastic bag containing 3 transparent resealable plastic bags which contained a total of 9.26 grammes of a powder containing 7.83 grammes of ketamine (Exhibit 1); (b) 1 transparent resealable plastic bag containing 4 transparent resealable plastic bags which contained a total of 10.73 grammes of a powder containing 6.86 grammes of ketamine (Exhibit 2); (c) 1 transparent resealable plastic bag which contained 0.54 gramme of a powder containing 0.27 gramme of ketamine (Exhibit 3); and (d) 1 transparent resealable plastic bag which contained 0.33 gramme of a powder containing 0.16 gramme of ketamine (Exhibit 4) ;

(ii) 1 electronic scale with traces of ketamine; and

(iii) 1 plastic box containing (a) 1 spoon; (b) 1 straw with traces of ketamine; (c) a bundle of plastic bags (5 cm x 8 cm); and (d) a bundle of plastic bags (4 cm x 6 cm).

5.  A bunch of keys was found in the bag carried by the defendant.  He had the keys to the main gate and front door of the Unit as well as the 2 rooms therein.

6.  In his video recorded interview, the defendant admitted, inter alia, that he had an argument with his family and had no place to stay.  His friend allowed him to stay at the Unit.  He had stayed there for half a month.  He claimed that all the drugs seized belonged to him and they were for his own consumption.  The defendant now admits that he possessed Exhibits 1 to 4 for the purpose of unlawful trafficking.

Mitigation & Sentence

7.  The defendant is now 20 and has 2 conviction records, both of which are "simple possession".  For his last conviction, he was given a DATC Order in July 2013 and was released at the end of January 2014.

8.  Defence counsel Ms. LEE informed me that at the time of the offence, the defendant was a transportation worker of IKEA's subcontractor, earning $11,000 per month.  Ms. LEE submitted that the defendant's parents were busy running their business in the mainland. Therefore, they did not give him sufficient supervision.  As a result, the defendant began consuming ketamine in the mid-2000s.

9.  Ms. LEE stressed that the defendant did not have the need to earn money by trafficking in ketamine since he could keep the entire amount of his salary for his own use.  Ms. LEE submitted that the defendant was perhaps trying his luck with the law enforcement to see if he would get caught.  Ms. LEE also pointed out that the defendant is a drug user; he intended to consume part of the ketamine found in the present case (though the amount cannot be quantified).

10.   Finally, Ms. LEE submitted that owing to his dermatological disorder[1] (which affected his appearance), the defendant did not have many friends.  He often had to "buy" their friendship by treating them to meals and entertainment.  A bundle of mitigation letters and construction-related qualification cards were placed before me; their contents are duly noted.

11.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders.

The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see SJ v HII Siew Cheng [2009] 1 HKLRD 1). For 10 to 50 grammes, the sentence ranges from 4 to 6 years' imprisonment.

12.  The defendant trafficked in 15.12 grammes of ketamine.  For that quantity, the appropriate starting point is 4 years' imprisonment.  A one-third discount is given for his guilty plea, reducing the sentence to 32 months.  I note that there is evidence suggesting that the defendant is a drug addict and that he has claimed partial self-consumption in the course of mitigation (though quantity unknown).  I am prepared to grant him a nominal discount of 4 months to reflect this.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence I pass is 28 months' imprisonment.