HKSAR v. So Kai Kin

DCCC 570/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 570 OF 2016

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Reasons for Sentence

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1.The defendant stands to plead guilty to one charge of trafficking in a dangerous drug and accepts the facts of the case.

2.The facts show that the defendant was subject to a stop and search in the evening of 20 April 2016 in Mongkok.  On search he was found to be in possession of 29 transparent resealable plastic bags which contained a total of 21.45 grammes of powder containing 13.25 grammes of the narcotic ketamine.  Nine bags were found in the right pocket of the defendant's jacket, a further 20 bags in a coin bag.  He had cash and also three mobile phones in his possession.

3.When cautioned, the defendant admitted he sold the ketamine on behalf of some people since he was in need of money.  He gave further details in a video-recorded interview where he said the cash of $2,000 found in his right rear pocket of his jeans was money he had received for selling 10 packets of ketamine at $200 per packet.  He had used the Samsung mobile phone to contact customers and he had been selling ketamine on the day of his arrest.

4.The defendant has admitted his antecedents. He is aged 38.  He has two previous convictions.  He was fined in 1995 but of more significance is that on 12 June 2015 for the offence of smoking and injecting a dangerous drug.  He was sentenced to 4 months' imprisonment and that was suspended for a total of 36 months.  The other details of the defendant's antecedents are he was working as a part-time hotel worker earning $16,000.  He claimed to be a drug addict and was living with his mother.

5.Mitigation has been advanced on behalf of the defendant.  He was working as an assistant photographer, I am told earning $16,000 per month and he also had a part-time job in a hotel.  His father has passed away, his mother is aged 81, she suffers from hypertension.  There is a letter from the employer that tells me that the defendant works as a willing worker.  In mitigation the defendant also says that he is remorseful. The defendant committed this offence because on 1 April of this year his work was terminated and he needed this money to pursue his addiction and also to maintain his lifestyle.

6.As far as sentence is concerned, the starting point for sentence in offences of trafficking in a dangerous drug is largely determined by guidelines sentences.  In this case the drug we are concerned with is 13.25 grammes of the narcotic ketamine and this places the sentence within the sentencing band of 10 to 50 grammes of ketamine which provides a starting point for sentence of ranging between 4 to 6 years' imprisonment.  So the starting point for sentence must be within that band and as the figure of 13.25 is towards the lower end of the band then the starting sentence must reflect that.

7.In mitigation today, it is said there is another mitigating factor besides the defendant's plea of guilty and that is it was advanced in mitigation that the defendant would consume some of the drug himself, though of 29 bags of ketamine the self-consumption was particularised as three bags in mitigation, so he would consume three of those bags and asked for a discount on that basis. 

8.The basis for granting a discount on the basis of the defendant's self-consumption of the drug was more recently looked at in the case of HKSAR v Tam Ling Yuen which is at CACC159/2015 and I summarise the position in that case.  It was said where the court was satisfied that a significant portion of the dangerous drug was for self-consumption then a discount from sentence from the basic starting point of between 10 and 25 per cent of the basic starting point could be considered.  The amount of the discount would of course be discretionary.

9.It appears to me that the significant factor for this case is the use of the words "significant portion of the drug". In cases referred to in that Judgment up to half or two-thirds of the drug seized would be consumed by the defendant and those were considered to be significant proportions.  However, in this  case the defendant simply refers to three of those 29 plastic resealable bags and based on the details of the Chemist that would not be, in terms of total of grammes, a significant amount. So I do not consider it appropriate in this case, given the defendant's advanced mitigation, that there should be any discount on that head of mitigation.  The defendant cannot make out that a significant portion of the drugs would be for his own consumption.

10.Nevertheless, I must consider where the appropriate starting point for sentence should be.  This is the defendant's first conviction for trafficking in a dangerous drug and only his second conviction in relation to drugs.  The amount of drug is not greatly over the bottom part of the tariff, that of 10 grammes, so I will adopt the starting point at the lowest point on the tariff which is 4 years' imprisonment.

11.The defendant is entitled to a one-third discount from that figure.  That leads to a sentence of 32 months' imprisonment. 

12.The conviction of the defendant for this offence also places him in breach of the suspended sentence passed on 12 June 2015, that is now just over a year ago.  Of course unless interests of justice so demand, that sentence should also be served.  I have regard to the fact the defendant is a year into the three year suspension period.  What I shall do is order that 2 months of that sentence be served consecutively to this existing sentence and 2 months concurrently.  That leaves an overall sentence of 34 months' imprisonment.