HKSAR v. Kwok Kei Tai, Koray

DCCC 1153/2024

[2025] HKDC 1259

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1153 OF 2024

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REASONS FOR SENTENCE

The defendant pleaded guilty to a "trafficking" charge (Charge 1) and a "simple possession" charge (Charge 2).

Summary of Facts

Charge 1

2.About 11:18 p.m. on 13 April 2024, PC 60209 (PW1) stopped the defendant at the junction between Cannon Street and Lockhart Road in Causeway Bay for enquiry. Upon search, the following items were found in the shoulder bag carried by the defendant:  (i) 1 resealable plastic bag containing 15 resealable plastic bags which contained a total of 9.00 grammes of a solid containing 7.46 grammes of ketamine; (ii) 1 resealable plastic bag which contained 2 resealable plastic bags each containing another resealable plastic bag which contained a total of 6.54 grammes of a solid containing 5.15 grammes of ketamine; (iii) 1 resealable plastic bag containing 11 resealable plastic bags which contained a total of 6.54 grammes of a solid containing 4.84 grammes of ketamine; and (iv) 1 resealable plastic bag containing 12 resealable plastic bags which contained a total of 3.44 grammes of a solid containing 2.71 grammes of cocaine.

3.PW1 arrested the defendant for "drug trafficking" at 11:23 in the same evening.  Under caution, he admitted that he was carrying ketamine and "coke".

Charge 2

4.At 11:53 p.m. on the same day, in Wanchai Police Station, PW1 conducted a further search of the defendant's shoulder bag.  He found a rolled up $20 banknote which contained traces of a solid containing ketamine.  PW1 arrested the defendant for "simple possession".  Under caution, he claimed that the ketamine was for his own consumption.

Admissions

5.In his video recorded interviews, the defendant admitted, inter alia, that he owed someone named "Muscular" $26,000.  Since he was unable to repay his debt, he resorted to drug trafficking.  The ketamine and cocaine found in the defendant's shoulder bag were given to him by Muscular.  He communicated with Muscular via Telegram.  Muscular would arrange for the drugs to be passed to the defendant, who would then follow Muscular's instructions to deliver the drugs to the "clients".  The defendant claimed that he had ceased taking ketamine for about half a year.  He used to take ketamine 2 to 3 times a week.

Mitigation & Sentence

6.The defendant is 18 and has a clear record.  Defence counsel Mr. Sham informed me that the defendant resides with his parents and twin brother.  The defendant was not good at studying and has only completed Form 3.  He has taken up some odd jobs and was mingling with Muscular, who turned out to be a drug trafficker.

7.In mitigation, Mr. Sham submitted that a friend of the defendant (surnamed Lau) was helping Muscular to sell drugs.  In early 2024, Lau disappeared with $26,000 odd of drug money.  Muscular then held the defendant responsible since he introduced Lau to Muscular.  The defendant was gullible and did not have money to repay Muscular.  So he ended up helping Muscular to deliver drugs to set off his debt.  Mr. Sham stressed that the defendant was somewhat "controlled" by Muscular.  The defendant's parents and twin brother have all commented that he is a helpful and caring son.  The defendant is determined to turn a new leaf and plans to learn some skills to join the construction industry.  He has recently obtained his Construction Safety Card.

8.Drug abuse has been a long-term problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it in the capacity of a seller, courier or storekeeper) and that drug traffickers (even fresh young offenders) would most certainly be punished by long-term imprisonment.

9.Although the defendant is under 21, by virtue of section 109A(1A) of the Criminal Procedure Ordinance (Cap.221), I need not obtain any pre-sentencing report in relation to Charge 1.  I accept that as a general principle, rehabilitation (rather than punishment) plays an important role in reforming young offenders.  On the other hand, as a judge, I see day in and day out persons in my court being charged with "drug trafficking".  Many of them were just like the defendant – persons in their late teens or early 20s who got involved with dangerous drugs for various reasons.  The court must make it clear that young age is hardly a mitigating factor in drug trafficking cases.

10.When young people realize that the court would not treat young drug traffickers lightly, there would be, hopefully, fewer willing teenagers; thus making it difficult for criminals to exploit our youngsters.  Unless the quantity of dangerous drugs involved is minor or exceptional circumstances exist, a wrong message would be sent to young people if they could avoid imprisonment owing to their age.  Undoubtedly, most of them are "used" by bad persons (or so they claim).  That is the reason why we need to make young people think twice before they agree to be "used".

11.The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see SJ v Hii Siew Cheng [2009] 1 HKLRD 1) and cocaine[1] (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak Ming & others [1990] 2 HKLR 370).  For 10 to 50 grammes of ketamine, the sentence ranges from 4 to 6 years' imprisonment.  For up to 10 grammes of cocaine, 2 to 5 years' imprisonment.      

12.In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs[2]. In Charge 1, the defendant trafficked in a cocktail of drugs consisting of 17.45 grammes of ketamine and 2.71 grammes of cocaine.  For 17.45 grammes of ketamine, applying a strict arithmetical approach, the appropriate starting point is 4 years and 5 months.  Similarly, for 2.71 grammes of cocaine, 2 years and 10 months.  In my view, the "combined approach" would arrive at a realistic and fair sentence.

13.Although less potent than cocaine, the ketamine found in this case is of a significantly larger quantity.  I decided that the quantity of ketamine should form the basis of the starting point[3].  Hence, I adopt a starting point of 53 months' imprisonment and adjust it upward by 7 months for the cocaine, arriving at 60 months.  With the timely guilty plea, the sentence is reduced to 40 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 40 months' imprisonment for Charge 1.

14.In Charge 2, the defendant possessed a rolled up banknote which contained traces of a solid containing ketamine.  I adopt a starting point of 6 weeks' imprisonment.  With the timely guilty plea, I sentence the defendant to 4 weeks' imprisonment.

15.Bearing in mind the totality principle, I order the sentences for both charges to run concurrently.  In other words, the total prison term for Charges 1 and 2 is 40 months.