HKSAR v. CHAN MAN SAN

DCCC367/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 367 OF 2011

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Reasons for Sentence

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1. The 2nd defendant enters a plea of guilty to Charge 2, namely, trafficking in a dangerous drug, laid against him under section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2.  The facts to which he agrees are as follows.  On 11 November 2010, an undercover police officer followed directions which he had received from a certain person and arrived at Room A1, 4th Floor, Prat Mansions, Nos. 26-36 Prat Avenue, Tsim Sha Tsui.  The 2nd defendant answered the door, let the officer in, and handed over to him a resealable transparent plastic bag containing what later confirmed to be 11.64 grammes of a powder with 9.09 grammes of ketamine in it.  The officer gave the 2nd defendant $900 and left the premises. 

3.  The undercover operation turned overt and the police arrested the 2nd defendant on 14 December 2010.  

4.  The court finds the 2nd defendant guilty as charged.

5.  In mitigation, the defence puts forward the following matters for the court’s consideration.  The defendant is 45 years old and has received education up to Form 3.  He works as a manager of a karaoke bar, making $20,000 a month.  He contributes $7,000 towards his parents’ household expenses. 

6.  The 1st defendant was a good friend, who was also a manager of another karaoke bar.  The 2nd defendant has had no knowledge of the 1st defendant’s involvement in drugs.  One day, the 1st defendant called the 2nd defendant, saying he had to leave Tsim Sha Tsui, and requesting him to hand over some drugs to Ah Wan, who turned out to be the undercover officer.  The 2nd defendant thought the risk of being found out was low, and desirous of helping a friend, he acceded to the 1st defendant’s request.

7.  The defence submits that the 2nd defendant is remorseful, as shown by his guilty plea to the charge. 

8.  The defence accepts that there is a sentence guideline in this kind of cases, and asks the court to deal with the 2nd defendant as leniently as possible.

Discussion

9.  Drug abuse is a menace to the society. Addiction to drug ruins a person, causes disruption to family life, and breeds serious crimes.  Even those who have successfully fought and overcome their addiction, which is a most painful process, their personalities and emotional make-up are in most cases marred for life; employment opportunities for them are limited; and prospects of their reintegration into the society are grim. What often awaits drug addicts and ex-drug addicts is extreme poverty over sustained periods and a life without self-esteem.  The duty is upon the court to play its part in the fight against drug-trade, to see to it that no one would be in any doubt that the society does not tolerate criminal conducts involving drug deals.

10.  The kind of dangerous drug with which the court is concerned is ketamine, a psychotropic substance often used by drug abusers in conjunction with alcohol or other dangerous drugs.  It has hallucinogenic effect and can cause impairment of the cognitive function.  In worse cases, abusers are liable to drown, to fall from height, and to cause car accidents.  There is a correlation, medical experts have discovered, between ketamine and kidney dysfunction and shrunken bladder effect. Sociologists have opined that among places where ketamine was abused, Hong Kong appeared to be worse, and that ketamine hit our younger generation, particularly those under 21.  Academic research has revealed that ketamine caused amnesia and could be used to facilitate sexual assaults by hampering the victims’ memory of what happened.  The abuse of ketamine has in recent years become rampant in Hong Kong.

11.  The Court of Appeal has laid down a sentence guideline for trafficking in ketamine.  For the amount of ketamine the 2nd defendant was found to have trafficked in, the appropriate sentence range is one of two to four years’ imprisonment (see Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323).  There is no special circumstance in the instant case to justify a departure from the guideline. 

12.  The defendant has had three criminal records prior to his current conviction, none of which relates to drug offences.  In sentencing the 2nd defendant, the court accepts the defence submissions that the 2nd defendant got himself involved in this case because he had wanted to do his friend a favour, and ignores any suggestion arising from the agreed facts that the 2nd defendant might know the drugs were for the purposes of onward trafficking.

13.  Apart from the defendant’s guilty plea, none of his personal and family circumstances would warrant any further reduction in sentence.

Conclusion

14.  In the result, the appropriate starting point is one of three years and nine months’ imprisonment, which is reduced by one‑third to reflect the 2nd defendant’s guilty plea to one of two years and six months’ imprisonment. 

15.  The 2nd defendant is sentenced to a period of imprisonment of two years and six months.