HKSAR v. Yuen Wai Ho

DCCC 764/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.764 OF 2015

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to trafficking in ketamine (1^st Charge) and resisting police in execution of their duty (2^nd Charge). 

2.In the early morning on 10 July 2015 the police executed a search warrant on a public housing unit in Lantau.  Upon entry the Defendant was sitting on his bed in his bedroom.  When the police disclosed their identity, he became very emotional and put up a fierce struggle.  He pushed the chest of a police officer and had other physical confrontation with other police officers.  After repeated warnings, he was subdued and remained calm throughout the investigation. 

3.Inside the drawer of a computer desk in his bedroom were found a re-sealable plastic bag containing 29.9 grammes of a powder containing 11.7 grammes of ketamine, a small electronic scale, 23 small empty re-sealable plastic bags, and 2 small spoons. 

4.Under caution, he said the ketamine was for self-consumption. 

5.In the subsequent video-recorded interview under caution, he said, among others, as follows:

(1) He had taken the taxi to Yau Ma Tei to purchase the ketamine from a male at HK$2,000 at about 0400 h the same day;

(2) He returned home by taxi;

(3) At about 0500 h at home he took 1 gramme of ketamine from the bag and put it on a piece of paper, ground the ketamine, and used the ketamine nasally;

(4) The re-sealable plastic bags were used to contain the ketamine for weighing prior to his consumption;

(5) He lived in the unit with his parents and elder sister;

(6) He would take 1 – 2 times of ketamine each day, 1 – 2 grammes each time;

(7) He would not take more than 4 grammes each day;

(8) He was a part-time deliveryman earning about HK$10,000 per month.

6.His DNA was found on the plastic bag containing the ketamine.

7.The estimated street value of the ketamine is HK$4,365. 

Personal background and mitigation

8.He is 20 years of age, of F.1 education level.  He had 1 record for possession of ketamine (sentenced in 2009), 3 records for resisting police (sentenced in 2013 and 2015), and 1 record for assaulting police (sentenced in 2012). 

9.His counsel Mr. Kwan refers to the sentencing guidelines in HKSAR v Hii Siew Cheng [2007] 1 HKLRD 1 to the effect that ketamine traffickers shall be sentenced to 4 – 6 years for up to 10 grammes – 50 grammes of ketamine.

10.He submits on instructions that the Defendant had intended to have half of the ketamine for trafficking to finance his drug habit and the remaining half for self-consumption.  Be that as it may, he accepts that such intention was not inflexible and the Defendant might well sell the ketamine in hand when given an attractive offer.  He suggests that a 10% - 25% discount from the starting point shall be given in accordance with the case of HKSAR v Chow Chun-sang [2012] 2 HKLRD 1116. 

11.He asks for a partly concurrent sentence for the charge of resisting police under the totality principle. 

Sentencing this Defendant

12.For the quantity of ketamine in question, I take a starting point of 4 years.  As I accept that part of it was intended for self-consumption.  I reduce the starting point to 3 years and 3 months. One-third off for the plea of guilty, the sentence is 2 years and 2 months for the 1^st Charge. 

13.The Defendant has a history of habitual discord with the police in their execution of duty.  The last sentence he received for it was 14 days on 28 April 2015, barely 2 ½ months from the present offence. There is a call for greater deterrence in the present sentence.  I take 1 ½ months as the starting point.  I give a one-third discount for the plea of guilty.  The sentence is 1 month on the 2^nd Charge.  

14.The two offences pertain to different circumstances.  Consecutive sentences are appropriate.  I then have to consider whether an overall sentence of 2 years and 3 months here based on consecutive sentences is in any way excessive or crushing.  I see no case for making any totality adjustment.   The overall sentence is 2 years and 3 months.