HKSAR v. Wong Yat Sing and Another

DCCC 519/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 519 OF 2008

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Before :   Deputy District Judge Fred Sham

Date :      12^th January 2009 at 10:30 am

Charge :   Trafficking in a dangerous drug (販運危險藥物)

REASONS FOR SENTENCE

1.Both defendants were jointly charged with one count of trafficking in dangerous drugs - the drugs involved are 498.71 grammes of a powder containing 400.98 grammes of ketamine.

2.They were convicted; in D1’s case-it was after trial, and in D2’s –he pleaded guilty at the conclusion of the prosecution case.

3.The facts relevant to sentencing can be summarized as follows:

“On the day in question, a team of police officers conducted an anti-drug observation in Pratas Street in Sham Shui Po. At around 9p.m., they spotted a red car stopping there suspiciously; they took action and intercepted the car. D1 was the front passenger and D2 the driver. Police officers told them to alight for investigation, after a brief moment of reluctance, they then stepped out; D1 was holding a red paper bag containing ketamine and there was a resealable bag also containing ketamine lying on D1’s seat. When D2 got out, he made an attempt to flee but was subdued in the end. Both Ds were questioned by the officers at scene and the questions and answers were recorded in the officer’s notebook respectively. D1 admitted that the bag of drugs he was holding was for his own consumption while the other bag upon which he sat was to be delivered to another; D2 admitted that he was only responsible for driving.  ”

4.D1 has 13 previous convictions – 3 of them are drug-related whereas D2 has 3 previous, 2 are drug-related. To their credit, none of them have any previous similar conviction as trafficking in dangerous drugs. As a result of the present conviction, D2 is in breach of a 3-month suspended term that was imposed on him in December 2007 for the offence of possession of dangerous drugs.

5.In mitigation, the court was told that D1, aged 29, single, lived with his 92 years old grandmother and his parents long divorced as early as he was 7. He used to work in the vegetable market. D1’s counsel submitted that though the court rejected the contention that one packet of the drugs was for his own consumption, D1 was in fact an drug addict-part of the drug might well be for his consumption.

6.D2, aged 23, also single, and was unemployed at the time of the offence. He stayed with his parents and whenever he was in employment, he would support the family. As far as the breach of suspended sentence is concerned, it is only 5 months into the suspension period that he committed the present offence, and on this basis, counsel for D2 asked the court to be as lenient as possible and hopefully the court would only activate a part of it.

7.All parties agree that the new sentencing guidelines for ketamine do not apply to the instant case for they took effect (6 June 2008) after the date of offence of the present case (4 May 2008), so relying on the old case-Lee Tak Kwan, for the amount of drugs the Ds trafficked, 400.98 grams of ketamine, that would fall within the bracket of 25 g to 400g, the term for consideration is one of 2 to 4 years. Both defence counsel ask the court to adopt a term of 4 years.

8.Trafficking in dangerous drugs is a heinous crime. The harm it could do to our community is enormous- whoever takes drugs are likely to end up living a criminal life, for the simple reason- once getting hooked on drugs, there is no turning back-they would continually need money to finance their vice habit and would turn to crimes for that, thus drugs cause crimes.

9.Without doubt, the drug addict himself leads a life of misery, but he would also make others’ life a misery- the immediate victims would be his family members, relatives or even friends.

10.Traffickers are those people who directly bring about such harm to our society-for this matter alone; they deserve to be punished severely.

11.For this type of offence, however, there are sentencing guidelines as set out by the appellate court in the case of Lee Tak Kwan. Having heard all the mitigation, I see no good reasons to depart from the guidelines; and in fact, both Ds lack mitigating factors of real substance except the belated plea of D2. As counsel have rightly pointed out the relevant band for consideration is 2 to 4 years for the amount up to 400grams. For the next category, it would be 4 to 8 years for the amount from 400grams to 800 grams. It is true to say that the assessment of proper staring point based on the amount of drug is not a matter of exact mathematics.

12.Apart from the amount of drugs they trafficked, there is another aggravating feature in the case in that they acted in concert in the commission of the offence.

13.Having taken into account all the mitigation, in D1’s case, I take 4 years as starting point, as I see nothing to reduce the sentence, D1 is therefore sentenced to 4 years.

14.In D2’s case, I also take 4 years as starting point, but reduce it by 8 months to reflect his belated plea (that is a 16.6% reduction.)

15.Insofar as his breach of suspended sentence is concerned, it is true that it was 5 months into the suspension period that D2 committed the present offence, but I cannot see how it could be a good reason to activate partly of the 3-month term. When the suspended term was given, I am sure he was told by the court that if he committed further offence during the currency of the relevant period, the term would be activated plus the term for the offence which brings him into breaching of the suspended term. Not long after the warning, he committed further offence-a similar but much more serious offence than before. Even if such does not amount to aggravation, it certainly would not be qualified as a valid reason to activate the term partly.

16.What I do is that I would activate the full term of 3 months, and order it to run consecutively to the 40-month term I just imposed, so D2 is sentenced to a total term of 43 months imprisonment.