HKSAR v. Tong Pak Sum

DCCC 908/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 908 OF 2016

-----------------

-----------------

-------------------------------------------

REASONS FOR SENTENCE

-------------------------------------------

1.The Defendant has pleaded guilty before me to one charge of trafficking in a dangerous drug, namely 244 grammes of a solid containing 128 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.The facts admitted by the Defendant reveal that at about 2050 hours on 22 July, 2016, police officers conducting an anti-narcotics operation in Tsim Sha Tsui noticed the Defendant acting furtively outside Carnarvon Plaza, 6 Cameron Road, Tsim Sha Tsui. He looked nervous and was walking quickly with his head lowered. He was intercepted and the police officer revealed his police identity to the Defendant. The Defendant was taken to the rear lane of No. 6, Cameron Lane, Tsim Sha Tsui for a body search. Upon search, a black plastic bag (E2) containing a transparent re-sealable plastic bag (E3) on which was stuck a piece of paper marked “25”, containing the dangerous drugs the subject matter of the charge, were found inside a black waist bag (E1) from the Defendant. The Defendant was arrested for the offence of trafficking in a dangerous drug and under caution the Defendant admitted that he was delivering ‘K Chai’ for a sale in order to make some money.  Upon further search, 2 mobile phones (E4 and E5) were found from the Defendant and seized.

3.In a subsequent video-recorded interview under caution, the Defendant admitted, inter alia, that he became bankrupt in mid-January, 2016 and his financial situation was poor. On the night of 20 July, 2016, feeling depressed, he had visited a bar in Knutsford Terrace, Tsim Sha Tsui, at around midnight. He met a male named Ah Lung, who asked him if he was interested in making some money. The Defendant said he was. He gave Ah Lung his mobile telephone number.  At around 2200 hours on 21 July, 2016, Ah Lung called the Defendant and asked the Defendant again if he was interested in making some money and if he was, he, Ah Lung would give the Defendant something to deliver on 22 July, 2016. The Defendant said he was interested. At about 1900 hours on 22 July, 2016, Ah Lung telephoned the Defendant to collect something from him at about 2000 hours that day – he would be arriving in a car.  The Defendant met Ah Lung – Ah Lung gave him a black plastic bag – the Defendant looked inside and saw the packet of ‘K Chai’.  The Defendant was to deliver the packet to someone else and he would be paid after he made the delivery, although how much he was to be paid had not yet been finalized.  The Defendant was awaiting instructions about the delivery when he was arrested. He said he did not understand the meaning of “25” marked on the piece of paper stuck on the re-sealable plastic bag containing the ketamine. The Government Chemist Certificate that was submitted by the Prosecution confirmed that the plastic bag, namely E3, contained a total of 244 grammes of a solid containing 128 grammes of ketamine.  The estimated street value of the ketamine was HK$16,768.    By his plea, the Defendant admitted that he was in possession of the dangerous drugs the subject matter of the charge at the material time and place for the purpose of unlawful trafficking.  I was satisfied beyond all reasonable doubt that the facts admitted by the Defendant supported the charge, and accordingly I convicted the Defendant on the charge that he faced.

Previous Convictions

4.The Defendant has 3 previous convictions in 3 court appearances, all offences of possession of dangerous drugs, the last two were both on 23/6/2011, when a concurrent probation order for 18 months was made.

Antecedent Statement

5.The Antecedent Statement was read into the record by the Prosecution. No issue was taken by the Defence on the contents of the Antecedent Statement. The Antecedent Statement disclosed that the Defendant is now aged 34 years. He was born in Hong Kong and educated to Form 7 in Canada.  He was employed as a sales manager in a fitness centre before his arrest.  He lived in Tuen Mun with his mother.

Mitigation

6.In mitigation, Counsel submitted that the Defendant was single.  He had been educated up to Grade 12 in Canada, although he was not a Canadian citizen. Until his arrest, he worked as a sales manager in a fitness centre, earning on average $26,000 a month – he had been working there since 2012.  He lived with his mother in Tuen Mun. He was the sole breadwinner of his family. His parents had been divorced for many years, and he grew up in a single parent family. 

7.Counsel submitted 3 letters in mitigation, one from the Defendant himself, one from a District Board member, who had known the Defendant for many years, and one from the Defendant’s superior at work. The District Board member, Ms. Catherine Wong Lai Sheung, described the Defendant as being hardworking and well respected by his colleagues and that he had learnt his lesson and the chance of his re-offending was slim and sought leniency for the Defendant.  His superior at the fitness centre, Mr. A. C. Chan, also sought leniency on behalf of the Defendant. He said the Defendant was hardworking and had a good relationship with his colleagues. He was shocked to learn of the Defendant’s offence – he felt the Defendant must have offended out of momentary greed and his need for money. He too believed the Defendant had learnt his lesson and was unlikely to re-offend and sought leniency for the Defendant.  The Defendant himself expressed his deep remorse and regret for what he had done – he had had the opportunity to reflect and said he offended out of stupidity for a small reward. He felt sorry too for the trouble he had caused his mother. He had learned his lesson and promised to turn over a new leaf.

7. I was told that the Defendant’s mother and fiancée were in Court to show their support for the Defendant. The Defendant and his fiancée had planned to marry in 2017, and now their plans have to be postponed. The Defendant hopes that he can be forgiven. The Defendant had been made bankrupt earlier this year and was in financial difficulties.

8.Counsel submitted that there were no aggravating factors here.  The Defendant had co-operated with the police from the outset.  He made a full confession when interviewed under caution, and had provided what little information he had of Ah Lung to the police. 

9.Mr. Li submitted that this was a sad case – the Defendant was a young man who was presentable – he spoke good English – he had his whole future ahead of him, taken away by his momentary stupidity – he had explained to the Defendant that imprisonment was inevitable and he had explained the guidelines from the Court of Appeal to the Defendant.  He sought leniency for the Defendant.

10.Counsel asked the Court to call for a Background Report to fully understand the Defendant’s background – I did not accede to this request – Counsel had done full mitigation on behalf of the Defendant. No useful purpose would be served by calling for a Background Report.

Sentencing Considerations

11.In the Secretary for Justice v Hii Siew Cheng & Anor. [2009] 1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in ketamine. For trafficking in 50 to 300 grammes of ketamine, a term of imprisonment of between 6 to 9 years is called for. Defence Counsel accepted that the quantity of dangerous drugs here falls within this band.

12.The court has said time and again that there is a need for deterrence when dealing with offences like trafficking in a dangerous drug. I have taken into account all that has been urged upon me in mitigation and the contents of the mitigation letters submitted.

13.In the present case, the matters urged upon me cannot detract from the fact that a deterrent sentence is called for as our society needs to get the message that trafficking in a dangerous drug is a very serious offence. I have full sympathy with the Defendant’s situation. Nonetheless, drug trafficking offences do call for substantial custodial sentences. A paramount consideration must be deterrence. Having considered the quantity of ketamine involved in this case and the Defendant’s personal background including his age, I am minded to adopt a starting point of 7 years’ (84 months) imprisonment.  In light of the Defendant’s guilty plea, I shall give him the usual discount of one-third. I do not see any other mitigating factors that warrant any further reduction in sentence.

14.The Defendant is sentenced to 4 years and 8 months’ imprisonment, that is 56 months’ imprisonment.