HKSAR v. Siu Hon Fai

DCCC 968/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 968 OF 2015

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REASONS FOR SENTENCE

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1.The defendant has been charged with two counts of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (the first and second charges). The defendant pleaded not guilty to the first charge but guilty to the second charge. In respect of the first charge, the defendant admitted possession of the drug as specified in the charge. Since the prosecution accepted the defendant’s plea to the lesser offence in respect of the first charge, I therefore convicted the defendant of possession of a dangerous drug in respect of the first charge and trafficking in a dangerous drug in respect of the second charge. The dangerous drug involved in both charges is ketamine.

Facts

2.At around 2:40 pm on 19 August 2015, police officers were patrolling around Cheung Wan Estate, Tsing Yi, and saw the defendant suddenly turn around and drop a packet containing 1.40 grammes of a powder containing 1.14 grammes of ketamine outside Ground Floor, Wang Sin House, Cheung Wang Estate.    The defendant was arrested and under caution he asked for a chance and repeated that the drug was for his own consumption.

3.The defendant said that he had forgotten to bring his HKID card and thus led the police officers to his home at Room 2210, Wang Sum House, Cheung Wan Estate.  Inside the premises, the following were found on a table:

(a) one transparent plastic bag containing 4 plastic bags containing a total of 51.20 grammes of a powder containing a total of 36.56 grammes of ketamine;

(b) one plastic bag containing 13.60 grammes of a powder containing 11.5 grammes of ketamine;

(c) cash of HK$4,000 and RMB¥ 200; and

(d) a town gas bill in the name of the defendant.

4.One electronic scale and one plastic bag containing 80 empty transparent resealable plastic bags were found on a cabinet next to the table.  The bag containing the ketamine dropped by the defendant was of the same size and type as the empty bags found in the defendant’s home. 

5.The defendant was arrested for trafficking in a dangerous drug.  Under caution, the defendant said that these were for his own consumption. 

6.The street value of the ketamine seized was estimated to be around HK$7,183.2.

Mitigation

7.The defendant is aged 36, single and lived alone.  Prior to the arrest, he worked as a transportation worker on casual basis, earning about HK$12,000 per month.  He has 13 previous conviction records, 3 for trafficking in dangerous drugs, 3 for possession of dangerous drug and one for possession of equipment for inhaling dangerous drugs.  His last conviction was in 2013 and was sentenced to Drug Addiction Treatment Centre. 

8.In mitigation, Mr Pun submitted that the defendant was a drug addict.  Part of the ketamine found at the defendant’s home was intended for self-consumption.  The defendant made similar admission under caution.  Mr. Pun referred to a number of cases[1] and submitted that the sentence for the second charge should be adjusted to reflect the fact that not all the ketamine was for trafficking.

9.Mr. Pun also referred to some cases[2] and submitted that the court should consider imposing concurrent sentences for the two charges.

10.Mitigation letter written by the defendant indicated that he was remorseful.  The defendant asked for a lenient sentence so that he could take care of his father.

Sentence

11.For the first charge relating to possession of dangerous drug, it is well settled that the appropriate starting point is between 12 and 18 months’ imprisonment.  Given the very small amount of ketamine involved in this charge, I consider the appropriate starting point is 9 months’ imprisonment and there will not be enhancement for latent risk.  Since the defendant pleaded guilty, he is entitled to the usual 1/3 discount.  The sentence is therefore reduced to 6 months’ imprisonment.   

12.For the second charge, the Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see Secretary for

Justice v Hii Siew Cheng [2009] 1 HKLRD 1). For trafficking in 10 to 50

grammes of ketamine, the sentence ranges from 4 to 6 years’ imprisonment. The amount of ketamine trafficked by the defendant is 48.06 grammes. For this quantity, I consider the appropriate starting point is 70 months’ imprisonment.

13.Regarding the claim for self-consumption, I have reminded myself the relevant principles in HKSAR v Wong Suet Hau & anor [2002] 1 HKLRD 69 and HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.  In the former case, it was held by the Court of Appeal that where it was accepted that a significant proportion of the drugs were for the defendant’s own consumption, the court should adjust the sentence to reflect the fact that not all the drugs were for trafficking.  However, it was not necessary for the sentencing judge to specify the relative amounts or proportions.  In the latter case, the Court of Appeal held that a discount between 10% and 25% from the basic starting point would be appropriate in cases where all or part of the drugs were intended for trafficker’s own consumption. In the present case, there is no evidence to rebut the allegation of self-consumption. It is also clear from the previous conviction records of the defendant that he is a drug addict.  In the circumstances, I am prepared to accept that part of the drug was for his own consumption and therefore reduce the starting point by 7 months to reflect the discount for self-consumption.  Given the defendant’s guilty plea, the sentence is further reduced to 42 months’ imprisonment. 

14.Taking into consideration the totality principle, the sentences for the two charges are to be served concurrently, making a total sentence

of 42 months’ imprisonment. I hereby sentence the defendant to 42 months’ imprisonment.