HKSAR v. Chow Kim Pang

DCCC 870/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 870 OF 2008

BETWEEN

Reasons for sentence

1.The defendant pleads guilty to two counts of trafficking in dangerous drugs.[1] The two lots of drugs found are 4.85 g and 8.62 g of ketamine respectively. The second offence was committed 5 days after the first offence while the defendant was on bail.

2.At about 6pm on 29/7/08, in the premises at 8/F., No. 1, Hung Wan St. Kowloon City, two police officers observed the defendant retrieving a packet from the top of a metal gate of another room. The officers then followed the defendant downstairs. When the defendant was about to board a taxi with another male, the officers stopped them. Upon search, 13 plastic bags wrapped in two pieces of white tissue were found from the front pockets of the defendant’s trousers. These plastic bags contained a total of 4.89 g of ketamine[2]. The defendant was arrested. During subsequent house search, the police found an electronic scale and 28 empty plastic bags on a desk inside the defendant’s room. The defendant told the police that he intended to share the drugs with his friends.

3.Six days later, at about 735 pm on 4 August 2008, the defendant was intercepted by another team of police officers at the stair case at 2/F., No. 2, Pang Ching St., Kowloon City. During search, the police found a plastic bag containing 8.62 g of ketamine[3]. The defendant told the police that he bought the drugs the night before for $800. The defendant admitted that the ketamine was for sharing with his friends.

4.The defendant is 24. He has a clear record. He finished F. 5 and was working as a hair stylist earning $15,000 per month. He lived with his father and stepmother. He cohabited with his girl friend shortly before the offences. He admitted that he was addicted to ketamine and often shared drugs with undesirable peers. He spent about one third of his income on drugs.

5.The new sentencing guidelines in Secretary for Justice v HII SIEW CHENG CAAR 7/ 2006 is applicable in this case. As Stuart-Moore VP pointed out, these guidelines are meant to be deterrent sentences.

“The guidelines are intended to deter traffickers who frequent such premises where young people are likely to be.  In very many instances, it is likely to be the small-time pushers of drugs, often with a mere handful of tablets to supply to others, who shoulder the responsibility for taking young people off the rails and starting them on a path of self-destruction through drugs.”

6.While the defendant maintains that part of the drugs were for sharing with his friends, there is no further detail about this arrangement. Given the amount of ketamine found in his possession, I do not think this is the kind of “social trafficking” which warrants a lighter sentence. In this regard, I bear in mind the comment of the Court of Appeal in HKSAR v Wong Suet-hau and Anor [2002] 1 HKLRD 69:

“In our opinion, while some of the ‘social’ or ‘non-commercial’ trafficking cases involving small quantities of drugs can properly be regarded, when all the circumstances are examined, as falling into the lower end of the sentencing scale applicable to the dangerous drug in question, we are firmly of the view that this factor should not, in itself, provide a general basis for imposing a lighter sentence, than would have been imposed for commercial trafficking. The ‘friend’ who starts off or perpetuates another’s abuse of drugs, is as dangerous to the community as the commercial supplier of small quantities, who will generally traffic in drugs with those already addicted.”

7.I have considered the letters submitted by the defendant and his father. In all, the background of the defendant reveals no strong mitigating factor. I regard his commission of the second offence while on bail an aggravating factor.

8.Having considered the background of the defendant, his age and the amount of the ketamine involved, I make the following order:

a.  For the first charge, I take 3 years as the starting point. I give one-third discount for his plea. I sentence the defendant to 2 years imprisonment.

b.  For the second charge, I take 3 years and 9 months as the starting point. I give one-third discount for his plea. I sentence the defendant to 2 years and 6 months imprisonment.

9.Taking into account the totality principle, I order 1 year and 3 months of the sentence of the second charge to run consecutive to that of the first charge. The defendant has to serve a total of 3 years and 3 months imprisonment.

[1]  Contrary to s.4 (1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

[2]  Subject matter of the first charge.

[3]  Subject matter of the second charge.