HKSAR v. Poon Kam Wing

DCCC 359/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 359 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of trafficking in a dangerous drug.

2.The quantity of narcotic is 67.5 grammes of the drug ketamine.

3.The facts are straightforward, and involve a stop and search.  The defendant has agreed those facts.  In essence, the arrest occurred on 24 February 2016 in the evening at about 9.45 pm, when the defendant was in the vicinity of New Town Plaza and the MTR Station at Shatin, in the New Territories.  He held a sling bag tightly.  He was stopped and searched.

4.On search, one paper bag containing one plastic bag of ketamine powder was found.  The defendant immediately, under caution, said, “The dangerous drugs are ‘K-chai’.  I deliver them for others.”

5.It is agreed the street value of the drugs was around $33,320.

6.The defendant agrees that he had those drugs on his person for the purposes of trafficking in them. 

7.The defendant’s antecedents are agreed.  He is aged 29.  He had been working in an online retail business - I am told it involved selling shoes - receiving a salary of about $20,000.  He lives with his parents and elder brother.  His antecedents statement says he is addicted to dangerous drug ketamine since 2004; cocaine since 2015.

8.That is borne out by the defendant’s criminal record, which shows five previous court appearances.  They all involve dangerous drugs.  As early as 2004 he was convicted for possession of dangerous drugs and sentenced to community service.  In 2006 he was sentenced to probation for the same offence.  By 2007, the defendant was sent to a drug addiction treatment centre for the same offence; and again in 2009.  By 2011, the defendant was involved in offences of trafficking in a dangerous drug where, for four offences, he was sentenced to 6 years’ imprisonment concurrently.

9.So the defendant’s criminal record shows a deteriorating history of drug addiction and offences involving drugs.

10.As the defendant’s entry into drug addiction treatment centre in 2007 and 2009 would have involved a finding that he was drug‑dependent, I find that supports the defendant’s mitigation today that he is a continuing drug-dependent and would consume drugs.

11.As far as the defendant’s mitigation is concerned, he prays in aid his plea of guilty and co‑operation with the police at an early stage.  He does provide some support to the family when he was earning money.  His father is hospitalised with senile dementia, and his condition is not good, I am told.  The defendant says in mitigation that he had consistently relapsed into taking drugs; that part of the drugs he would consume himself.  He estimated that to be in the region of 25 grammes, which is just over a third of the drugs, and said it would last him for seven days.  I do note he said under caution that he was delivering the drugs, but I do not believe that that necessarily displaces the inference I can draw from the defendant’s previous drug history that he would consume part of the drugs himself.

12.As far as sentencing is concerned, it is common ground that trafficking in ketamine is subject to guideline sentencing.  The relevant category in this offence is the figure between 50 grammes to 300 grammes, which would involve a starting point for sentence for a person of clear record, after trial, of 6 to 9 years’ imprisonment.

13.The position within that band taken as a starting point is largely determined on a mathematical basis.  Here the figure is some 17½ grammes over the bottom point of the guideline.  I believe that would place it in the region of 6 years and 3 months’ imprisonment, which is 75 months’ imprisonment.

14.There is also one aggravating factor in relation to the defendant’s commission of this offence, and that is that he already has committed an offence of trafficking in dangerous drugs in 2011, and clearly the sentencing in that case was insufficient to deter the defendant from committing this offence today.  That is an aggravating factor and should be represented in the determination of the starting point for sentence.

15.I will therefore increase the starting point for sentence by 6 months’ imprisonment to a total of 81 months’ imprisonment.

16.There is a mitigating factor.  Firstly, there is the defendant’s consumption of the drug himself, and secondly, the defendant’s plea of guilty.  The first factor must be determined initially.  I am prepared to accept, having regard to the defendant’s previous drug history, that he would consume a part of the drug.  Where a significant portion of the drug would be consumed by the defendant, that can be represented in a deduction from the starting point for sentence.  This is a discretionary figure, and authorities state this can range between 10 to 25 per cent of the starting point for sentence.

17.I consider that the amount that the defendant said he would consume would be significant in the circumstances of this case, and I am prepared to capitalise this as a figure of around 10 per cent from the initial starting point.  In order to provide a figure for this, I will take the nearest round figure, which is one of 9 months’ imprisonment.

18.This means the starting point for sentence is now 72 months’ imprisonment, or 6 years.

19.The defendant is entitled to a one-third discount for his plea of guilty, which means that the final figure for sentence in this case will be one of 4 years’ imprisonment on this charge, and that is the sentence I will impose.