HKSAR v. Tsang Wai Ho

DCCC 82/2021

[2021] HKDC 1234

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 82 OF 2021

________________________

________________________

________________________

Reasons for Sentence

________________________

1.The defendant has pleaded guilty to a single charge of trafficking in a dangerous drug, the particulars of which are that on 3 October 2020, in a private car which was parked at To Kwa Wan in Kowloon, the defendant trafficked in a total of 15.3 grammes of narcotic content of ketamine.

2.The facts are very straightforward.  The defendant had borrowed a car from a gentleman called Kwan in June of the year 2020.  On 3 October 2020, the defendant was seen standing beside that vehicle by a police officer.  The vehicle in fact was parked in Mei King Street in To Kwa Wan.  The police officer was suspicious of the defendant and the defendant was searched.  He had the car key on him and then he indicated that he had borrowed the vehicle. 

3.A further search was conducted and a resealable plastic bag containing 22 plastic bags of the dangerous drug ketamine was found in the storage compartment of the door next to the driver’s seat of the vehicle.  Three mobile phones and cash of $3,000 odd were found on the defendant.  Nothing was found in the defendant’s house search.

4.The narcotic content of the drug found was 15.3 grammes of ketamine with an estimated value of just in excess of $7,000. 

5.Defendant immediately made admissions.  Under caution, he said the ketamine was going to be sold to others.  And later in a video-recorded interview, he said he had borrowed the vehicle from Mr Kwan for the purpose of driving his own, that is, the defendant’s child. 

6.The defendant’s antecedents show him to be now aged 28 years old and educated up to Secondary 5 level in Hong Kong, had worked as a construction worker after leaving home.  He has a clear record. He has never been in prison before.  His domestic circumstance is that his father is retired, his mother is a nurse, and the defendant lived with his parents, his younger brother, his wife and a two-year-old son. 

7.As far as the mitigation advanced is concerned, the guideline for ketamine is referred to.  I am asked to consider the defendant’s clear record, that he is married and has a young son aged two years old from whom he is separated and will be during the course of any custodial sentence.  He says that he committed the offence because he was short of money. 

8.There are letters from members of the family and friends asking the court to take a lenient approach to the defendant.  The defendant appears to come from a normal family, has maintained a clear record up to this age, is a man with responsibility, has a wife and children.  And clearly, as Mr Cheung said in his mitigation, this is an offence that is out of character for him.  

9.In terms of sentencing, the courts are somewhat bound by guideline sentencing in these matters.  The case that covers the guideline sentence for the trafficking in ketamine is the Secretary for Justice v Hii Siew Cheng which is in fact an application for review and is listed as Cr App No. 126/2007, and in that case, the court laid down the sentencing guidelines for the offence of trafficking in ketamine, giving a band of sentencing. 

10.The quantity of ketamine that we are dealing with here is 15.3 grammes which puts the sentencing band in the region of 10 to 50 grammes, which is 4 to 6 years’ imprisonment. 

11.The guidelines themselves can be looked at in a purely mathematical fashion, and a calculation can be made within that band of 10 to 50 grammes as to where the defendant lies upon that, having regard to the quantity of ketamine the court is dealing with.  Here, 15.3 grammes lies just over the bottom end of the 4-to-6-year guideline. 

12.The purpose of the guideline is to achieve a sentence which is common to all quantities of drug and to provide uniformity in sentencing.  Nevertheless, although it is only a guideline, it can be departed from.  However, in this case the pressing factors in mitigation are defendant’s plea of guilty, his realistic approach to the case, his remorseful attitude and his previous clear record and family commitments. 

13.What I shall do in this case is simply take the bottom of the guideline to be my starting point for sentence.  That is 4 years’ imprisonment or 48 months. 

14.Defendant will get a one-third deduction from that, leaving a final sentence of 32 months’ imprisonment for this case.