HKSAR v. Kong Sai Ho

DCCC91/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 91 OF 2009

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Before:   H H Judge Whaley

Date:     4 March 2009 at 11.51 am

Offence:  Trafficking in dangerous drugs (販運危險藥物)

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Reasons for Sentence

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1.The defendant has been convicted on his plea of one charge of trafficking in dangerous drugs, namely on 20 December last year at the Lok Ma Chau Control Point in the New Territories, he unlawfully trafficked in 10.39 grams of a powder containing 8.18 grams of ketamine.

2.On the morning in question he was stopped at the Lok Ma Chau Control Point at the Customs Arrival Hall when he entered Hong Kong from the Mainland. 

3.He was searched and in his pocket was found a piece of folded bank note together with a plastic straw and, on further search, the ketamine was found in four plastic packets in his underwear.

4.The defendant, in an interview conducted by the Customs’ Officers, later claimed that the ketamine was purely for his own self-consumption. 

5.The defendant is 28 years of age and he has a previous conviction for possession of dangerous drugs in June last year for which he was fined. 

6.The courts in Hong Kong take a very serious view of the offence of trafficking in dangerous drugs.  Drugs are considered a major scourge which cause great unhappiness in one way or another.  It might provide some temporary sort of high or pleasure which is why people consume it in the first place, but ultimately, these drugs cause great unhappiness and dislocation in the community. 

7.The sentences which are imposed contain a substantial deterrent element in the hope that they will deter people like the defendant from getting involved in trafficking in dangerous drugs. 

8.The Court of Appeal has suggested guidelines for sentencing in these cases and the guidelines in relation to ketamine and ecstasy are set out in the case of Secretary for Justice v Hii Siew Cheng CAAR 7/2006.  The guidelines suggest that for a quantity of between 1 and 10 grams of narcotic a sentence of 2 to 4 years’ imprisonment would normally be appropriate after trial.

9.The quantity of narcotic in the present case being 8.18 grams of ketamine, I have adopted a starting point of 3 years’ imprisonment after trial.

10.For the defendant’s plea of guilty and cooperation with the authorities, he is entitled to the normal one-third discount, which reduces the starting point to 2 years’ imprisonment.

11.There is still the question of the defendant’s claim that the drugs were purely for his own self-consumption to take into account.  The Court of Appeal has dealt with this matter in HKSAR and Wong Suk Hau & Anor [2002] HKLRD 69 and stated that where it was accepted that a significant proportion of the drugs were for the defendant’s own consumption that the sentence should reflect the fact that not all the drugs were for trafficking. 

12.The Court further stated that:

“Given the dangers of the abuse of this avenue of mitigation" - because, of course, it is a very easy claim to make and, indeed, it is one which is increasingly made by people who are caught trafficking dangerous drugs these days - “the sentencing court should look with the greatest care at all the circumstances in order to decide whether or not to accept the contention by the defendant.” 

13.The Court also said that the sentencing court should keep in mind that possession of dangerous drugs, in itself, carries a term of imprisonment and that the starting point which is adopted in cases of possession of dangerous drugs is very often enhanced to reflect what is called the latent risk factor, in other words, the risk that some of the drugs, even if they are intended for the defendant’s own consumption, may very well find their way into the hands of other users in Hong Kong.  The application of these factors and considerations might offset much of the practical value of the defendant’s claim in mitigation that the drugs were intended for his own consumption.

14.As I have noted in the present case, the defendant was found in possession not only of the drugs bout also the folded bank note and a plastic straw, and that straw did contain a small quantity of ketamine, so I accept that it appears to have been used by somebody, probably the defendant, in order to consume some ketamine. 

15.In these circumstances, and also noting the relatively small quantity of ketamine the defendant was carrying, and the fact that he does have a previous conviction for possession of dangerous drugs in June last year, I accept that the defendant did intend this ketamine or the greater part of it for his own self-consumption when he was caught bringing it into Hong Kong.

16.As against that, the fact that the defendant was importing the ketamine from the Mainland is an aggravating feature.  Importation of a drug into Hong Kong necessarily adds to the quantity of drugs available in Hong Kong, and it does lead to the well-documented risk that some of the drug might well find its way into other peoples’ homes. 

17.In all the circumstances, I consider it would be appropriate to further discount the sentence by six months to reflect the fact that I accept that the defendant intended a significant part of this ketamine for his own self-consumption.  In the result I sentence the defendant to a total of 18 months’ imprisonment.