HKSAR v. WONG KAI LAM

DCCC 1196/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1196 OF 2008

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

Reasons for Sentence

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

The charges

1.  The defendant pleads guilty to the 2 following charges:

(1)  Possession of a dangerous drug, namely 25.39grammes of a powder containing 19.27 grammes of ketamine (1^st Charge); 

(2)  Trafficking in a dangerous drug, namely 5.72 grammes of a powder containing 4.74 grammes of ketamine (2^nd Charge). 

The facts of the 1^st Charge

2.  The offence under the 1^st Charge took place at 10:55 p.m. on 8 July 2008.  He was seen acting suspiciously along the corridor on the 9^th floor of a building known as Po Ning House, Po Lam Estate, Tseung Kwan O.  A police officer approached him and declared police identity.  He fled towards a nearby staircase down to the 8^th floor.  On the way he threw a bag containing white substance from the lift lobby on the 8^th floor to the ground floor.  He was finally intercepted.  The bag or its contents could not be recovered. 

3.  Upon search of his trouser pocket, a plastic bag was found.  There were 2 resealable plastic bags inside.  Inside the 2 plastic bags were, as later analysed and weighed, a total of 25.39 grammes of a powder containing 19.27 grammes of ketamine.

4.  Upon arrest and under caution he said that he had purchased ketamine in bulk as it would cost him less money and that the ketamine was for his own consumption. 

5.  He was put on police bail after initial investigation.

The facts of the 2^nd Charge

6.  At around 7:10 p.m. on 2 October 2008, while the police were laying ambush near Room 933 of the same building, they saw the Defendant coming out from Room 933.  They intercepted him for enquiry.  When they searched Room 933, they found a box behind a speaker at the lower bunk bed occupied by the Defendant.  Inside the box were:

(1)  1 resealable plastic bag containing 1.82 grammes of a powder containing 1.51 grammes of ketamine;

(2)  1 resealable plastic bag containing 10 resealable plastic bags containing a total of 3.90 grammes of a powder containing 3.23 grammes of ketamine;

(3)  1 resealable plastic bag containing 2 plastic spoons which contained traces of ketamine;

(4)  1 rolled HK$20 note which contained traces of ketamine; and

(5)  2 resealable plastic bags which contained 100 resealable plastic bags.

7.  Upon arrest and under caution, he said that the items found belonged to him and that the ketamine was for sharing with friends. 

8.  In the subsequent interview under caution, he said that he had given some ketamine to a friend who was living nearby and that the ketamine, the spoons, and the resealable plastic bags belonged to him.  He further said that after he had purchased a bag of ketamine, he divided it into 10 small bags.  

9.  The total amount of ketamine found, as later analysed and weighed, was 4.74 grammes.

The Defendant’s circumstances

10.  He is 27 years old.  He lives with his father, step-mother, and 3 siblings.  He also has 3 step-siblings.  He attained F. 3 education.  He then took up various unskilled jobs.  He was a delivery worker between December 2007 and August 2008.  Afterwards, he has lived on public assistance until now.  In 2001 he was sentenced to Drug Addiction Treatment Centre for trafficking in a dangerous drug.  There is no information of the drug involved.  In 2004 he was sentenced to Drug Addiction Treatment Centre for possession of ketamine.  In 2007 he was fined $3,000 for possessing ketamine. 

11.  He has remained a ketamine abuser before arrest. 

The principles of sentencing

Possession of ketamine

12.  There are no sentencing guidelines for possession of ketamine. 

Trafficking in ketamine

13.  On 6 June 2008, some time before the 2^nd offence here, the Court of Appeal in Secretary for Justice v Hii Siew Cheng CAAR 7/2006 laid down new sentencing tariffs for trafficking in ketamine, in place of HKSAR v Lee Tak-kwan Cr App 177/1997, as follows:

(1)  up to 1 gramme – within the sentencer’s discretion;

(2)  over 1 gramme to 10 grammes – 2 to 4 years’ imprisonment;

(3)  10 to 50 grammes – 4 to 6 years’ imprisonment;

(4)  50 to 300 grammes – 6 to 9 years’ imprisonment;

(5)  300 to 600 grammes – 9 to 12 years’ imprisonment;

(6)  600 to 1000 grammes – 12 to 14 years’ imprisonment; and

(7)  over 1000 grammes – 14 years upwards.   

Committing an offence whilst on bail for another offence

14.  In HKSAR v Yuen Gang-shing Cr App 303/ 1997, the Deputy Judge adopted a starting point of 7 years’ imprisonment on the ground that the 1 year on top of the 6 years was due to the applicant’s having committed the offence whilst he was on bail.  In upholding the sentence, Liu JA said:

5.  Commission of any offence whilst on bail is unquestionably an aggravating factor to be taken into account as did the Deputy Judge.

15.  In HKSAR v Ngo Wai-kuen Cr Apps 191 & 334/ 2004, the applicant was put on bail for the an offence of possession of a dangerous drug (Charge 1).  She then committed another offence of possession of a dangerous drug (Charge 2) and the offence of keeping a divan (Charge 3).  Stuart-Moore VP said:

9.  Each offence was committed on a wholly separate occasion.  Indeed, it is a significant aggravating feature that the second and third offences in the sequence were committed whilst the applicant was on bail. 

Concurrent and consecutive sentences

16.  In R v Yau Kwok-tung [1987] HKLR 782, the applicant was convicted of two counts of handling stolen goods and one count of robbery.  He was sentenced to two years imprisonment concurrent for each count of handling and four years’ imprisonment for the robbery.  The two years’ term and the four years’ term were to be consecutive.   That would be a total of six years’ imprisonment.  On appeal, Roberts CJ said:

The earlier transactions, relating to the handling of stolen goods took place about 2 and 4 weeks before the robbery and were totally unconnected with it. We see no reason why a Judge should not, in such circumstances, order sentences to run consecutively. (at 783)

17.  In HKSAR v Woo Chung-hing Cr App 19/ 2002, the applicant committed two distinct and separate offences of trafficking on different days.  Lugar-Mawson J, sitting as an additional judge in the Court of Appeal, said:

9.  We can see no reason why the Judge should not have passed wholly consecutive sentences on the Applicant.

Totality

18.  In the English Court of Appeal case of R v McKechan [2004] EWCA Crim 212, David Clark J, said:

5.  The principle of totality, that is the principle that consecutive sentencing for multiple offences must not be used so as to produce a total sentence which is excessive for the overall offending …

19.  In HKSAR v Zhen Futing Cr App 509/2003, The applicant was charged with two offences of possession of arms without a licence, two of possession of offensive weapons, and one of resisting a police officer in the due execution of his duty.  Stock JA observed that:

18.  Judges must always sentence accurately for each particular offence and having done so, only then address the question of totality.

The sentence I pass

20.  The 2^nd Charge involved 4.74 grammes of ketamine.  It shall fall within the range of 2 to 4 years’ imprisonment according to Hii Siew Cheng (supra).  Given the fact that it was for sharing between friends without proof of selling and buying, I shall take a starting point of 2 years and 6 months.  Based on Ngo Wai-kuen (supra), it is seen as an aggravating factor for the Defendant to commit the second offence whilst on police bail for the first offence.  I revise the starting point to 3 years.  I give him a one-third discount.  There are no other mitigating factors.  The sentence is 2 years for this charge.   

21.  The 1^st charge involved 19.27 grammes of ketamine, quite a large quantity.  I take a starting point of 12 months’ imprisonment.  I give him a one-third discount.  There are no other mitigating factors.  The sentence is 8 months for this charge. 

22.  As the courts said in Yau Kwok-tung (supra) and Woo Chung-hing (supra), distinct and separate transactions shall call for consecutive sentences.  Our present case involved such transactions.    

23.  However, based on the principle as seen in McKechan (supra) and Zhen Futing (supra), I have to consider totality.  I make the following adjustment:

(1)  1^st Charge: 8 months;

(2)  2^nd Charge: 2 years, 1 year and 6 months of which consecutive to the 1^st Charge, the remaining part concurrent with the 1^st Charge. 

The total length is 2 years and 2 months.