HKSAR v. Kwok Kam Wah and Another

DCCC 1260/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1260 OF 2008

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Before:  Deputy District Judge Eddie Yip

Date:     20 April 2009 at 11:05am

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Reasons for Sentence

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The charges

1.D1 pleads guilty to trafficking in a dangerous drug, namely 91.31 grammes of a powder containing 71.19 grammes of ketamine (1^st Charge)

2.D2 pleads guilty to possession of a dangerous drug, namely one banknote containing traces of a powder containing ketamine (2^nd Charge).

The facts

3.At about 6:18 p.m. on 10 November 2008, while the police were conducting an anti-burglary operation in North Point area, they saw D1 and D2 acting furtively at the junction of King’s Road and North View Street.  They intercepted D1 and D2 outside the ground floor of a building. 

4.A search on D1 yielded 3 resealable plastic bags containing a total of 7 resealable plastic bags of substance (later analysed to be 91.31 grammes of a powder containing 71.19 grammes of ketamine).  Upon enquiry, D1 said that they contained ketamine.  Upon arrest and under caution, he said that he had consumed some ketamine with D2 before the arrest.  He had bought the ketamine from a male in Mongkok two days ago (1^st Charge).

5.A search on D2 yielded one HK$100 banknote containing traces of a powder containing ketamine.  Upon arrest and under caution, D2 said that the banknote belonged to himself and contained ketamine for his own consumption (2^nd Charge).

The Defendants’ circumstances

6.D1 is now 27 years of age.  He has 7 previous convictions, 3 of which are for possession of a dangerous drug.  He is a drug dependent.  He has received education up to secondary level.  He was a part-time transportation worker before arrest.  He used to make monthly contribution to his mother’s living expenses. 

7.D2 is now 24 years of age.  He has 7 previous convictions, 1 of which is for trafficking in a dangerous drug and 5 of which are for possession of a dangerous drug.  He is a drug dependent.  He has received education up to F.3 level.  He was a transportation worker before arrest.  He used to make monthly contribution to his family’s living expenses. 

8.After committing the present offence, D2 was arrested for trafficking in a ketamine in DCCC 75/ 2009, in which D2 also pleads guilty today.  There he has just been sentenced to 4 years and 2 months’ imprisonment.  

Sentencing for trafficking in ketamine

9.On 6 June 2008, the Court of Appeal in Secretary for Justice v Hii Siew Cheng CAAR 7/2006 laid down new sentencing guidelines for trafficking in ketamine, in place of HKSAR v Lee Tak-kwan Cr App 177/1997, as follows:

 (1)     up to 1 gramme – within the sentencer’s discretion;

(2)     over 1 gramme to 10 grammes – 2 to 4 years’ imprisonment;

(3)     10 to 50 grammes – 4 to 6 years’ imprisonment;

(4)     50 to 300 grammes – 6 to 9 years’ imprisonment;

(5)     300 to 600 grammes – 9 to 12 years’ imprisonment;

(6)     600 to 1000 grammes – 12 to 14 years’ imprisonment; and

(7)     over 1000 grammes – 14 years upwards.   

Sentencing for possession of ketamine

10. There are no sentencing tariffs for possession of ketamine. 

The sentence I pass

11.The 1^st Charge involved 71.19 grammes of ketamine.  It falls within the range of 6 to 9 years’ imprisonment according to Hii Siew Cheng (supra).  I take a starting point of 6 years in the present case.  I give him a one-third discount for his plea of guilty.  There are no other mitigating factors.  The sentence is 4 years for this charge.   

12.The 2^nd Charge involved traces of ketamine.   I take a starting point of 6 months’ imprisonment.  I give him a one-third discount for his plea of guilty.  There are no other mitigating factors.  The sentence is 4 months.  However, given the fact that he has just been sentenced to 4 years and 2 months’ imprisonment in DCCC 75/2009, I see no point to add anything on top of it.  I order the sentences in both cases to be concurrent.