|
DCCC 1112/2015
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1112 OF 2015
____________
____________
| Present: |
Mr Lee Pak Chau, counsel on fiat, for HKSAR
Mr Hui Chun Sing, instructed by Cheung Chan & Chung assigned by the Director of Legal Aid, for the defendant |
| Offence: |
Trafficking in dangerous drugs (販運危險藥物) |
REASONS FOR SENTENCE
1. Shit Wai Lun you have pleaded guilty to one charge of trafficking in 10.10 grammes of a crystalline solid containing 9.87 grammes of methamphetamine hydrochloride (‘ice’) and 33.84 grammes of a powder containing 13.24 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance[1].
2. In summary at around 1:50 a.m. on 15 October last year at the junction of Bute Street and Canton Road in Mongkok the police conducted a snap check on private car SU 6449. You were the driver of the car with one female passenger.
3. Inside the female passenger’s handbag the police found a small grey canvas bag inside which was ten transparent re-sealable plastic bags containing the ice. Under the front passenger seat the police also found a small purple bag inside which was three transparent re-sealable plastic bags containing the ketamine. Under caution and in a subsequent video recorded interview you admitted all the drugs belonged to you.
4. In passing sentence I have carefully considered everything said on your behalf by Mr Hui, including that you have been a drug addict for over 10 years.
5. Various guidelines have been laid down for trafficking in drugs. In HKSAR v Tam Yi Chun[2]the Court of Appeal recast the sentencing guidelines for trafficking in ice. The starting point after trial is between 3 and 7 years imprisonment where the quantity of narcotic is up to 10 grammes.
6. In Secretary for Justice v Hii Siew Cheng[3]the Court of Appeal laid down guidelines for trafficking in ketamine. Where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years imprisonment.
7. Adopting the “individual” approach to sentence based on quantity alone the starting point for trafficking in 9.87 grammes of ice would be 6 years and 9 months imprisonment and for 13.24 grammes of ketamine would be 4 years and 3 months imprisonment.
8. Applying what has been referred to as the “absurdity test” a starting point of 11 years imprisonment is clearly excessive for if all the drugs were ice the starting point based on quantity alone would likely be no more than 8 years imprisonment[4].
9. I agree therefore with Mr Hui that the “combined” approach to sentence is appropriate. Ice being the most potent drug I adopt the starting point of 6 years and 9 months for 9.87 grammes of ice to which I am satisfied an enhancement of 6 months to 7 years and 3 months imprisonment is appropriate to take into account the fact you were also trafficking in ketamine.
10. Applying the “conversion test” I am satisfied the result would again be a sentence of 7 years and 3 months imprisonment[5]. The greater preponderance of the narcotic being ketamine I am satisfied the “ratio test” is not applicable as this would result in a starting point less than that for trafficking in 9.87 grammes of ice.
Aggravating factor
11. In 2011 you were convicted of trafficking in a dangerous drug and sentenced to 2 years and 4 months imprisonment. The courts have repeatedly said that the fact that the trafficker has engaged in trafficking on a previous occasion is an aggravating feature of sentence. I am satisfied the starting point is to be enhanced by 3 months to 7 years and 6 months imprisonment.
Own use
12. Mr Hui informs the court that you have been taking ice for over 10 years to enable you to be more alert at work and that you take ketamine to help you sleep. You claim that three of the smaller packets of ice, totalling 2.72 grammes and the smaller packet of ketamine, containing 2.22 grammes, were for your own use[6].
13. You say you were carrying the drugs with you at night because you did not want your family members to find them and you were going to stay the night with your girlfriend, who was the female passenger in the car.
14. In August 2010 for an offence of possession of drugs you were sentenced to a Drug Addiction Treatment Centre. This shows you have a recent history of drug taking. As indicated in court I am therefore prepared to accept that a small quantity of drugs may have been for your own consumption.
15. Taking into account that shortly after midnight you were arrested in Mongkok and not at home, I have real reservations as much as three bags of ice and one bag of ketamine, in particular the three bags of ice were for your own use. On the other hand the difference in quantity between the three bags of ice and one bag of ketamine and a small quantity which may have been for your own use is unlikely to be significant when considering how much weight is to be attached to the fact part of the drugs were for your own use.
16. I therefore proceed on the basis three bags of ice and one bag of ketamine may have been for your own use. In deciding how much weight should be attached to this fact I have considered the decision in HKSAR v. Wong Suet Hau[7], in particular paragraphs 33 and 34. The Court of Appeal said that in most cases the difference in sentence, if any, will be slight.
17. Taking into account that the drugs were carried on the street in the early hours of the morning; were packaged in thirteen re-sealable plastic bags; possession of drugs carries a sentence in any event; and the latent risk factor, I am satisfied the starting point should be reduced by 9 months to one of 6 years and 9 months imprisonment, which is equivalent to a 10% discount from the starting point.
Credit for pleading guilty
18. You are entitled to credit for pleading guilty however arguably your plea is not a timely plea having been entered only on the second day of trial. On the first day of trial no plea was taken. A plea to possession only was however indicated.
19. The case was adjourned to the afternoon so that you could inspect the car in which the drugs were found. In the afternoon I am told you came to court only to abscond soon after. Mr Hui has sought to explain on your behalf why you did not stay at court in the afternoon. I must say I find the excuse difficult to accept. Even if true this is no excuse for not staying at court.
20. Valuable court time has been wasted and inconvenience caused to all concerned. After careful consideration and taking into account you surrendered to court at the next court sitting, I am satisfied this can properly be dealt with by way of estreatment of part of your bail money only. I estreat the sum of $3,000.
21. Giving you full credit for your plea of guilty you are convicted and sentenced to 4 yearsand 6 monthsimprisonment.
|
(D. J. DUFTON)
District Judge |
[1] Chapter 134.
[2] [2014] 3 HKLRD 691.
[3] [2008] 3 HKC 325.
[4] The starting point after trial for trafficking in ice where the quantity of narcotic is between 10 and 70 grammes is 7 to 11 years imprisonment.
[5] See HKSAR v Chan Yuk Leong CACC 318/2013.
[6] Photographs showing the packaging of the drugs were shown to the court.
[7] [2002] 1 HKLRD 69.
|