HKSAR v. Wong Sze Ka

DCCC 316/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 316 OF 2016

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

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

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

REASONS FOR SENTENCE

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

1.The defendant pleaded guilty to a charge of “Trafficking in a dangerous drug” (1^st Charge)and another charge of “Failing to surrender to custody” (2^nd Charge). The dangerous drug involved in the 1^st Charge was 110.09g of ketamine and 0.5 g of cocaine.

Summary of facts

2.In the evening of 4 January 2016, outside Flat B, 3/F, Boundary Street, Mong Kok, Kowloon which was occupied and rented by the defendant at the time, the defendant was intercepted by a team of police officers. Upon search of the above premises, there were found 6 resealble plastic bags containing 110.09g of ketamine and 0.5g of cocaine, 1 electronic scale and cash in a total sum of $13,080 on a bedside cabinet and a pink plastic bag containing 87 empty resealable plastic bags on the bed.

3.Upon arrest, the defendant said, under caution, that the “K chai” was for her own consumption.

4.The street value of the dangerous drugs seized in the case were estimated to be around HK$14,630.02 in total.

5.The defendant was subsequently admitted to bail having been charged and was required to attend court on 4 October 2016 for trial.  Several days before trial, the defendant through her solicitor informed the prosecution by letter that she was prepared to plead guilty to the charge.  On the first day of trial, the defendant claimed that she was sick and was confirmed to be in hospital.  The hearing was adjourned to the next day on which the defendant was given two days’ sick leave and claimed she was unable to attend court. The hearing was further adjourned to 7 October 2016 on which the defendant again failed to attend court without reasonable cause. A warrant of arrest was issued by the court accordingly.

6.The defendant was arrested by the police on 11 October 2016 and was detained since then.

Mitigation

7.The defendant is 37 years’ old and divorced. She is of clear record. The defendant claimed that the first time she got in touch with dangerous drug was from her ex-husband in 2013. She used to urge her ex-husband to quit the drug addiction but she finally got addicted herself in 2014 when she discovered her ex-husband was disloyal to her.  She started to take ketamine 2-3 time per week but then became a daily user and consumed 6-8g per day. She mostly took ketamine but also took cocaine sometimes.  She worked as a saleslady before but became unemployed for some years.  Having spent all her savings, she needed to sell dangerous drugs to sustain her addiction.  It was said that at the material time about 60% of the ketamine and all the cocaine found in her premises were for her own consumption.

8.In her mitigation letter, it was revealed that the defendant had consulted a social worker who referred her to see a psychiatrist for her emotional problem.  However, no written proof at all was prepared at the first hearing of sentence and I therefore adjourned the hearing for twice enabling the defence to adduce some proof of what the Counsel said on behalf of the defendant about her psychiatric problem and her addiction.  It was noted that when the urine test conducted as soon as the defendant  was remanded was negative.  It was also mitigated that she was too unwell to attend court on the 7 October 2016 and she therefore failed to tell her solicitor and the court about her absence.

Sentence

9.A clear message must be conveyed to the general public that “drug trafficking” is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders.  Sadly, many of the drug traffickers are drug addicts themselves but that will not alleviate Hong Kong courts’ repugnance of the enormous harm bought to the society by dangerous drugs.

10.The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine and cocaine.  For 50-300g of ketamine, the sentence ranges from 6 to 9 years’ imprisonment[1] while trafficking in up to 10g of cocaine carries a sentence of 2 -5 years’ imprisonment[2].

11.Since the amount of cocaine seized in the present case was of very small when compared with that of ketamine, I consider the appropriate starting point for the overall amount of drugs involved in the 1^st Charge is 75 months’ imprisonment. 

12.Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles set out in the authorities.[3]  In Chow Chun Sang, Yeung VP held:-

“We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant.” (paragraph 19, p 1126)

13.After some time has been given to the defence to locate the social worker and the psychiatrist whom the defendant had consulted, both the social worker and the psychiatrist, Dr Hariman, confirmed in writing that the defendant had told them about her drug problem after her mother’s passing away.  The defendant lastly told Dr Hariman that she had spent $100-200 daily on ketamine.  As admitted in the summary of facts, the retail value of ketamine at the material time was about $128 per gramme. As such, the amount of ketamine seized in the present case could have served her for around 100 days, in other works for about three months’ time. I consider there is sufficient evidence to show that the defendant had been  a drug user at the time of arrest.  I am prepared to give her 25%  reduction for that and reduce the sentence to 56 months to reflect the discount for her self-consumption.

14.A full one-third discount is given for the guilty plea indicated at plea day, reducing the sentence to 37 months for the 1^st Charge. 

15.In respect of the 2^nd Charge of Failing to surrender to custody, I take 3 weeks’ imprisonment as the starting point which is reduced to 2 weeks given her guilty plea. I order 1 week of the same to be served consecutively to the sentence of 1^st Charge. 

16.The total sentence is therefore 37 months and 1 week’s imprisonment.