HKSAR v. Chan Ping Fai

DCCC934/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 934 OF 2008 

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Before:   Deputy District Judge Tallentire

Date: 8 April 2009 at 3.08 pm

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

Reasons for Sentence

1.You were convicted after trial on two charges of trafficking in dangerous drugs, each contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. 

2.The facts of those cases have been dealt with fully in my judgment delivered of 13 March last.  Suffice to say that each involved Ketamine.  The 1st charge, 11.23 grammes and the 2nd, 110.68 grammes, that amounts to a substantial quantity of dangerous drugs.

3.You are a man of hitherto clear record.  Given your relatively young age and clear record, I adjourned the cases for the preparation of a probation officer’s background report.  That report was before me on the last occasion.  It is extremely detailed, comprehensive and helpful. 

4.On your behalf, Mr Khattak put forward extensive and persuasive mitigation.  A cornerstone of that mitigation was that even though you had been convicted of trafficking, you were in fact a drug dependent who would use a substantial part of the drugs yourself.

5.To support this I have referred to the case of HKSAR v Wong Suet Hau & Anor, Criminal Appeal 366 and 487 of 2000. In that case it was held that the sentencing court must address the issue, however, “after a plea of guilty”.  Here, we are dealing with a conviction after trial.  However, in order to afford the defence the maximum leeway, I did adjourn the case for a DATC report in order to establish if you were a drug dependent. 

6.I made it clear that I had no intention of making a DATC order for such a serious offence.  That report did indeed confirm your addiction and was supplemental to the probation officer’s background report I have referred to already.

7.In mitigation Mr Khattak made the following points.  First, although the matter went to trial it was a short paper trial; the basis of the evidence was the admitted facts; that you elected not to give evidence; that you are a habitual drug user or drug dependent; that a substantial quantity of the drugs were for your own consumption and only a part for trafficking.  Your clear record and relative youth was stressed.  A substantial quantity found in the premises was in a locked drawer. 

8.The main thrust of the litigation related to only a small part being for trafficking and the majority for self-consumption.  I note this concession that you were indeed indulging in trafficking.  Mr Khattak invited me to take the view that the 110 grammes found in your premises was substantially for your own consumption.  And indeed, the 11 grammes found on your person, part of that also was for your own consumption.  I reject that approach.  I am only prepared to accept that some was for your self-consumption and some was for selling. 

9.Mr Khattak, on your behalf, has asked me to follow the recommendation and make a DATC order or a sentence of less than 4 years’ imprisonment. 

10.In sentencing you, I have had regard to the content of both reports, that is, the probation officer’s report and the DATC report and the mitigation advanced by Mr Khattak and, of course, the facts of the case especially the amount of dangerous drugs involved. 

11.Here we have conviction for trafficking in a substantial quantity of dangerous drugs, in excess of 120 grammes of Ketamine.  I am prepared to accept that some was for your own consumption.  I accept that you are relatively young and note your hitherto clear record.

12.I accept that the trial was shortened by your admission of facts.  To maximise the credit I can afford to you, I sentence you on the basis that the overall quantity of drugs, even though there are two offences.  I have applied the mitigating factors I have mentioned and whilst I am prepared to go below tariff, I am not prepared to go substantially below the tariff. 

13.I reject DATC as an option.  These offences are far too serious.  Trafficking is a very serious offence indeed.  For the 1st offence, you will go to prison for 3 years.  On the 2nd offence you will go to prison for 5 and a half years.  These will be served concurrently making a total of 5 and a half years’ imprisonment.  And finally I think counsel for their assistance in this case.