HKSAR v. Pang Hei on

DCCC 1263/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1263 OF 2008

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Reasons for Sentence

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1.The defendant faced 3 charges:-

(i) trafficking in 45.78 grammes of ketamine(i.e. exhibits E1 & E2);

(ii) possession of 0.02 gramme of nimetazepam and 0.09 gramme of ecstasy (MDMA); and

(iii) possession of 11 tablets of phenylpropanolamine, a Part I poison.

2.The defendant pleaded guilty to the 1^st charge of trafficking in 45.78 grammes of ketamine while the remaining 2 charges were left on court file, not to proceed without leave of the court.

3.On the day in question (2 October 2008, a Thursday) the defendant was seen coming out of the subject premises (flat C on the 3^rd floor of 10-A Pok Man Street in Mongkok of Kowloon) at about 7 pm. Police intercepted him and found 3 keys in his possession. Of the 3 keys, two provided access to the main entrance to the premises.

4.In the living room of the premises police found an opened metal box placed on a table. Inside this box, amongst other things, police found the following items:-

(i) 2 transparent resealable plastic bags of powder [Exh E-1] (subsequently confirmed by the government chemist to weigh 54.12 grammes and which contained 45.13 grammes of ketamine) kept inside another plastic bag;

(ii) a resealable plastic bag containing a small quantity of powder [Exh E-2] (which was subsequently confirmed to weigh 0.79 gramme and contained 0.65 gramme of ketamine);

(iii) a resealable plastic bag containing 2 foilpacks of 3 tablets (which was later confirmed by the chemist to contain 0.02 gramme of nimetazepam) and 4 tablets (which was later confirmed by the chemist to contain 0.09 gramme of MDMA);

(iv) a resealable bag containing 11 tablets (which was later confirmed to be phenylpropanolamine, a Part I poison) and 27 transparent resealable plastic bags;

(v) an electronic scale; and

(vi) a bank statement bearing the defendant’s name.

5.The defendant remained silent when cautioned inside the premises.

6.Back in the police station the defendant was further interviewed under caution. He told the police officer he rented the subject premises since June 2008. The metal box seized by the police belonged to him. The 3 keys the police found in his possession opened the gate, the main door of the premises and the box in which the drugs were kept. He kept the dangerous drugs, the electronic scale and the plastic bags for his friend “Ah Wai”. He knew they were dangerous drugs.

7.The defendant’s fingerprint was found on the metal box.

8.It was said in the defendant’s mitigation that he lacked parental supervision since his father left him when he was 6 years old. His mother worked hard to raise the family. The defendant used to work as an assistant in the vegetable market. He used the subject premises to meet up with his girlfriend. He had not touched the drugs and the bags in question. “Ah Wai” asked him to keep the drugs as there was no place within the premises for safe custody of the drugs.

9.Since the Court of Appeal decision in Hii Siew Cheng [2009] 1 HKLRD 1 in June last year the sentence tariff for trafficking in ketamine has been revised. A person who trafficked in a quantity of 10 to 50 grammes of ketamine is expecting a sentence between 4 to 6 years. For the 45.78 grammes of ketamine the defendant was dealing with the appropriate starting point of sentence to adopt should be a term of 5 years 9 months.

10.The defendant has 1 previous conviction of possession of dangerous drugs in April 2007. There was no claim of personal consumption in this case. Matters have been discussed in chambers which I do not need to refer, save to say they have not reached the status of usefulness. The strongest mitigating factor is his plea of guilty indicating remorse. Though his plea came only on the 1^st day of his trial, which would normally attract a lower reduction than the usual 1/3 discount. Nevertheless, in light of his positive attitude and his attempt to render assistance, I accord him the full 1/3 discount and sentenced him to a reduced term of 3 years and 10 months imprisonment instead (which represented 2/3 of the 5 years and 9 months term).