HKSAR v. Law Yin Pang

DCCC959/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 959 OF 2008

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Before:   H H Judge Whaley

Date:     6 March 2009 at 9.52 am

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

Reasons for Sentence

1.The defendant has been convicted on his plea of one charge of trafficking in dangerous drugs, namely, on 2 September last year in Yuen Long he trafficked in 63.36 grammes of a powder containing 49.87 grammes of ketamine. 

2.On the evening in question the defendant was in a taxi which was stopped at a police road block in the course of an anti-dangerous drugs operation; he was searched and the drugs in question were found in two plastic bags inside a larger bag that the defendant was carrying. 

3.He is 23 years of age.  He has only one previous conviction which is not relevant for present purposes. 

4.It should be very well known by now what a serious view the courts in Hong Kong take of the offence of trafficking in dangerous drugs.  These drugs are considered a major scourge by the community in Hong Kong.  They no doubt afford some sort of short term pleasure to people who use them but they cause endless problems, grief and dislocation eventually.  The Court of Appeal has suggested guidelines for sentencing in these cases, the aim being to achieve uniformity in the sentences passed by the different courts, and also to enable people to know what sort of sentence they will recevie if they are caught trafficking. 

5.The current guidelines for trafficking in ketamine are set out in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  The guidelines suggest that for a quantity between 10 and 50 grammes of ketamine narcotic, a sentence of 4 to 6 years imprisonment after trial will normally be appropriate.  The quantity of ketamine narcotic which the defendant was trafficking in was 49.87 grammes.  I note that the next band of the guidelines suggest that where the quantity of narcotic is 50 to 300 grammes a starting point of 6 to 9 years’ imprisonment will normally be appropriate.  The guidelines are based very largely on the quantity of the narcotic which is trafficked in. 

6.Miss Ong has said everything that could be said on behalf of the defendant.  The guidelines are not a strait-jacket.  They can be departed from, but only for very good reason.  There is no reason on the facts of the present case for departing from the guidelines.  The courts have made clear over the course of many years that factors such as a clear record - and the defendant has almost a clear record - do not normally justify a discount of the sentence which is otherwise appropriate under the guidelines.  All that Miss Ong has been able to rely upon in mitigation are the defendant’s personal circumstances; namely, that his girlfriend is pregnant, living with his mother and that of necessity the defendant will not be able to help support his girlfriend when his child is born.  That is not a factor which properly calls for a discount of the sentence which it is otherwise appropriate to impose.  The defendant should have thought of these sort of factors before he became involved in such a very serious offence as trafficking in these dangerous drugs. 

7.I adopt a starting point of 6 years’ imprisonment and for his plea of guilty and co-operation with the authorities the defendant is entitled to the one-third discount which is now normally afforded, which results in a sentence of 4 years’ imprisonment.  That is the sentence I impose.