HKSAR v. WAN HING MAN

DCCC 1226/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1226 OF 2010

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Reasons for Sentence

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Charge and facts

1.  The defendant pleads guilty to trafficking in dangerous drugs.  In the early hours of 3 September 2010, the police spotted him wandering next to a private car at Quarry Bay Park.  He had a cloth bag inside his underpants.  The bag contained an assortment of dangerous drugs, namely ketamine, cocaine and nimetazepam (“No. 5”) and some non-controlled drugs.

2.  After arrest and caution, he said as follows:

(1) the drugs were bought in Mong Kok at $4,000 on board the car;

(2) he then went for a joy ride;

(3) he could not find his friends in Shau Kei Wan before arrest;

(4) he would consume the ketamine and the “No. 5” himself;

(5) he would treat his friends with the cocaine and the non-controlled drugs.

3.  The contents of the assortment were as follows:

(1) 16 bags containing a total of 18.25 grammes of a powder containing 14.39 grammes of ketamine;

(2) 7 bags containing a total of 1.88 grammes of a solid containing 0.82 gramme of cocaine;

(3) 5 packs containing a total of 37 tablets containing 0.23 gramme of “No. 5”;

(4) 4 bags of non-controlled drugs.

4.  He clarifies in court that the entire bulk of all the drugs was intended for his own consumption in the course of gratuitous social trafficking.

Personal background and mitigation put forward

5.  The Defendant is 23 years of age. He has received F. 3 education.  He was a barber at the time of arrest.  His monthly income was $10,000.  He has 3 previous convictions, all for triad offences but none related to drugs. 

Sentencing principles

Sentencing on assortment of drugs

6.  In HKSAR v Cheung Kwok Leung CACC 539/2002, Beeson J, who delivered the judgment of the Court of Appeal, outlined the proper approach as follows:

“38. We acknowledge however that it can be a difficult and complex task to sentence offenders who traffick in, or possess quantities of, a number of different drugs. In a case such as the present one the starting point should be based on the total narcotic content of the most serious drug, or drugs where the tariff guidelines are co-equal.

39. The sentencer should examine the nature and quantity of other dangerous drugs in the combination and, where warranted, make an upward adjustment of, say, 4-18 months from the starting point. Whether any such adjustment is warranted will depend on whether other narcotic quantities are sizeable, whether the other drugs come within the same, or lesser tariffs, or whether any adjustment would be pointless, given the starting point adopted or the relevant range of sentence.

40. Where other drugs are in the group, but the quantities are very small, or where their addition to, or inclusion with, other items would not make any difference to the total sentence, the sentencer can, properly, ignore them when computing sentence.”

7.  Such approach has been widely adopted in subsequent cases (HKSAR v Yip Wai Yin CACC 80/2003; HKSAR v Cheung Kwok Fai CACC 157/2008).  

8.  Given the small quantities of cocaine (0.82 gramme) and “No. 5” (0.23 gramme), ketamine (14.39 grammes) shall be regarded as the most serious drug to attract primary consideration for sentence.  Cocaine and “No.5” shall contribute very little to the enhancement of sentence in our present case. 

Guidelines for ketamine trafficking

9.  According to the Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, a narcotic quantity of 10–50 grammes shall attract 4–6 years’ imprisonment.

Social trafficking

10.  In Hii Siew Cheng (above), Stuart-Moore VP said:

“98. ….. We should perhaps repeat what was said in HKSAR v Wong Suet-hau [2002] 1 HKLRD 69 wherein this Court dealt with the approach to be taken to “social trafficking”. The Court of Appeal in that case said:

‘51. In our opinion, while some of the ‘social’ or ‘non-commercial’ trafficking cases involving small quantities of drugs can properly be regarded, when all the circumstances are examined, as falling into the lower end of the sentencing scale applicable to the dangerous drug in question, we are firmly of the view that this factor should not, in itself, provide a general basis for imposing a lighter sentence, than would have been imposed for commercial trafficking. The ‘friend’ who starts off or perpetuates another’s abuse of drugs, is as dangerous to the community as the commercial supplier of small quantities, who will generally traffic in drugs with those already addicted.’”

Sentencing present Defendant

11.  I take a starting point of 4 years and 3 months.  I reduce by one-third because of the plea of guilty.  There are no other mitigating factors.  The sentence is 2 years and 10 months.