HKSAR v. Ho Wai Lok

DCCC 943/2018

[2019] HKDC 944

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 943 OF 2018

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REASONS FOR SENTENCE

1.The defendant pleads guilty to two charges of trafficking in ketamine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.In summary at around 1905 hours on 17 July last year the police intercepted the defendant outside Shop G7-G8, 17 Nelson Street in Mongkok. 

3.The police conducted a body search and found inside the right front pocket of the defendant’s trousers an orange bag inside which was a total of nine transparent re-sealable bags each containing ketamine. 

4.Six small transparent re-sealable bags contained a total of 4.92 grammes of a solid containing 4.26 grammes of ketamine and three bags contained a total of 2.52 grammes of a solid containing 2.18 grammes of ketamine (charge 1). 

5.Under caution the defendant admitted selling the dangerous drugs for a daily reward of $2,000.  The defendant also told the police he had more drugs which were placed in a booth in Sai Yeung Choi Street South.

6.The defendant also possessed two mobile phones, one tablet computer, HK$16,837 and RMB ¥1 cash and a waist bag. 

7.The defendant then led the police to the G/F, 22A, Sai Yeung Choi Street South where the police seized a canvas bag inside which were ten transparent re-sealable bags containing a total of 8.25 grammes of a solid containing 7.15 grammes of ketamine (charge 2).

8.Under caution the defendant admitted selling the dangerous drugs on behalf of someone else. 

9.The estimated street value of the ketamine is $5,829.

Mitigation

10.In passing sentence, I have carefully considered the oral and written submissions of Mr Tsang including that the defendant acted out of stupidity and greed[2].  I have read the mitigation letters written by the defendant and his parents.

11.I take into account the defendant has no previous convictions for trafficking in drugs.  I note that the defendant was convicted of possession of drugs in 2007, over 10 years ago, when he was fined $2,000. 

Guidelines

12.In Secretary for Justice v Hii Siew Cheng[3] the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 1 and 10 grammes sentence after trial falls within the range of 2 to 4 years’ imprisonment. 

13.On a purely arithmetical approach a starting point of just over 3 years and 2 months would be appropriate for trafficking in 6.44 grammes of ketamine and just over 3 years and 4 months for trafficking in 7.15 grammes of ketamine. 

14.Taking into account the defendant has no previous convictions for trafficking in drugs, I adopt slightly lower starting points of 3 years on charge 1 and 3 years and 3 months on charge 2. 

15.Giving the defendant full credit for his plea of guilty reduces the sentences to 2 years and 2 years and 2 months’ imprisonment respectively.

Co-operation

16.Mr Tsang submits that credit should be given to the defendant for his co-operation with the police, including informing the police that he had more drugs and leading the police to seize those drugs[4].    Ms Khubchandani confirms without the defendant’s co-operation the police would not have known about the ketamine subject of charge 2.

17.In HKSAR v Ma Ming[5] the Court of Appeal held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount. 

18.The Court of Appeal in HKSAR v Ngo Van Nam[6] reaffirmed the position that a judge was not obliged to give a discount over and above the one-third discount explaining that the mitigating factor of a confession was subsumed within the one-third discount.   

19.The court in Ma Ming did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge. 

Totality

20.I am satisfied in considering totality of sentence I should look at the combined total of ketamine.  The total narcotic is 13.59 grammes.

21.In Secretary for Justice v Hii Siew Cheng the court held that where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years’ imprisonment.  On a purely arithmetical approach a starting point of just over 4 years and 2 months’ imprisonment would be appropriate for trafficking in 13.59 grammes of ketamine.  On a plea of guilty this would result in a sentence of just under 2 years and 10 months’ imprisonment.

22.Taking into account the defendant’s co-operation with the police I am satisfied a total sentence of 2 years and 6 months’ imprisonment properly reflects the defendant’s overall criminal culpability on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[7].  

Charitable donations

23.Mr Tsang submits to court a letter from World Vison showing that in 2015 the defendant sponsored a child in Nepal.  Reference is also made in the parents’ letter to the defendant sponsoring children in Africa. 

24.Mr Tsang says that the defendant has donated around $4,000 per year for three years.  Although written proof cannot be found I accept what Mr Tsang tells the court.

25.In recognition of making these charitable donations, I further reduce the total sentence by 1 month to 2 years and 5 months’ imprisonment.   

Sentence

26.The defendant is convicted and sentenced as follows:

Charge 1 – 2 years’ imprisonment;

Charge 2 – 2 years and 2 months’ imprisonment with 5 months consecutive and 21 months concurrent to charge 1;

The total sentence to be served by the defendant is 2 years and 5 months’ imprisonment.