HKSAR v. Fok Tik Sang

DCCC 658/2018

[2019] HKDC 310

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 658 OF 2018

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REASONS FOR SENTENCE

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1.Defendant was convicted on his own plea and agreement to summary of facts to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, Laws of Hong Kong.

Facts

2.Defendant was stopped and searched at 10:53 pm on 19 May 2018 in Hung Hom.  13.7 grammes of a powder containing 8.03 grammes of ketamine was found inside 11 transparent plastic bags in the right lower pocket of defendant’s shorts. 

3.Defendant was arrested and under caution he said that he bought the same from a stranger earlier in the day at $4,000 for his own consumption and that he asked for a chance.

4.During subsequent video recorded interview, he stated that he knew it was ketamine inside these plastic bags and that he bought it from a stranger shortly before being intercepted after being told by a friend that there was someone selling ketamine near Whampoa Estate and that when he bought it, the same was already packed in such 11 packets.  He also said that he intended to rent a room to consume the drugs and his daily consumption is two packets a day and his monthly salary was $7,000.

5.Street value of ketamine was $4,721.

Criminal record

6.Defendant has three previous convictions, one similar.  On 12 November 2015, he was sentenced to Training Centre for a similar offence and released on 13 April 2017.

Mitigation

7.Defendant was aged 20 at time of offence.  He is aged 21 now.

8.He was transportation worker at time of arrest. 

9.He received education up to secondary school level.  He is a drug dependent and he used to live with his parents and younger brother and sister.

10.Defence counsel urged this court to give defendant one-third sentencing discount in view of his plea, despite that he only indicated his change of plea nearly two months after the trial date was fixed and more than two months before the scheduled trial date. 

11.He asked this court to consider a lower sentencing starting point, having reference to the sentencing tariff in the case of Hii Siew Cheng, CAAR 7/2006 and CACC 126/2007.

Discussion

12.Trafficking in dangerous drugs is a very serious offence, the maximum sentence of which on conviction on indictment is a fine of 5 million and imprisonment for life.

13.Defendant is a relatively young offender.  As said, trafficking in dangerous drugs is a very serious offence and also this court noted that he has a previous conviction for similar offence and was sent to Training Centre but it is clear that he did not learn a lesson nor treasure the freedom that he had.  The only appropriate sentencing option in the circumstances, despite his age, would be a term of imprisonment.

14.Following the sentencing tariff in the said case of Hii Siew Cheng, the appropriate sentencing starting point for the present offence involving 8.03 grammes of ketamine would be 42 months.

15.Despite his previous conviction, this court is not going to enhance his sentencing starting point on this occasion.

16.As for the appropriate sentencing discount to be afforded to the defendant, in the case of Ngo Van Nam, CACC 418/2014 and 327/2015. The Court of Appeal said that the range of discount to be afforded to a defendant who indicated to the court or the prosecution that he intended to plead guilty after the trial date had been fixed but before the first day of trial lies between 25 per cent discount to be afforded to a defendant who indicated that he wished to plead guilty to and until dates were fixed for his trial by the listing judge and the 20 per cent to be afforded to a defendant for a plea of guilty on the first day of trial. 

17.In determining the appropriate sentencing discount in the circumstances, the judge would have regard to the time at which the indication was given and to all other relevant circumstances.

18.Here, defendant indicated his guilty plea nearly two months after trial date was fixed and two months before the actual date of trial.  This court is willing to afford him the sentencing discount at 25 per cent.

19.This court has also considered all the mitigation advanced by defence counsel.  The most valid mitigation obviously is his guilty plea, of which he would be given this 25 per cent discount. 

20.Accordingly, defendant is sentenced to 31 months and 15 days imprisonment.