HKSAR v. Pang Chi Kwong

DCCC319/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 319 2009

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Reasons for Sentence

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1.The defendant pleaded guilty to a charge of trafficking in a dangerous drugs, and the quantity involved was 53.95 grammes of a powder containing 44.75 grammes of ketamine.

2.The prosecution case was that the police spotted a van parked outside the Sha Tin Centre Shopping Arcade and the defendant was standing next to the van acting suspiciously. The police stopped the defendant and found the drugs from the pocket of his jacket.

3.Under caution, the defendant admitted that the drugs were ketamine, they belonged to him and they were for his own consumption. In the record of interview he further admitted that he bought the drugs from Ah Ming at $3,600, and they were for his own use.

4.The average retail price for the drugs was $125 per gramme. The total amount for the quantity was about $6,700 at street value.

5.The defendant had one previous record. He was sentenced to 2 months’ imprisonment, suspended for a period of 2 years and was fined for $5,000. The present offence was committed during the suspended period.

6.In mitigation, I was told that the defendant suffered the loss of his father in May 2008 and he was further hurt by the leaving of his girlfriend. He therefore resorted to ketamine to relieve himself from these emotional disturbances. According to the antecedent statement, which was not in dispute by the defence, he started to take ketamine since September 2008. His brother and a District Councillor also write to this court to say the same thing. His brother also says that the defendant is now very regretful and remorseful.

7.He was a self-employed person as an air-conditioning technician earning $8,000 per month. Before his arrest, he was a truck driver earning $8,000 per month and he needed to support his family. He lived with his mother and two siblings but they do not have stable income. On the day in question, Ah Ming sold the drugs to him at a big discount since he bought it in a large quantity and the purchase price was therefore $3,600.

8.In determining the sentence, I have regard to the case of Wong Suet Hau CACC366/2000 and CACC487/2000. At paragraph 34 and 35 of the judgment there were a number of factors to be considered before passing sentence. And applying those factors in the present case, I found the following:

(i) the drugs involved was about 44.75 grammes in four packets form and

(ii) there was no equipment found inside the defendant’s premises.

(iii) The defendant claimed to be a drug abuser of ketamine.

(iv) He told the police in the record of interview and under caution that the drugs were for his own consumption.

(v) The prosecution accepted that half of the drugs was for his own consumption.

(vi) Further, he started to take ketamine was due to the death of his father and the separation from his girlfriend.

9.The defendant had one previous conviction in December 2008. A background report in that case was called for. The probation officer had doubts that it was the first time the defendant took ketamine when he was arrested by the police in December 2008. The defendant simply had not learned a lesson from his previous arrest and sentence, he continued to abuse drugs. His girlfriend eventually left him because of his drug problem.

10.The defendant says that the drugs were for his own consumption, that means about 22-something grammes were for his own use. He had to support his family. With $8,000 per month as an income and $3,000 went to his family, he had only about $5,000 left to support his own drug habit. Even if he had that money to buy the drug with a big discount, there was a great risk that some of the drugs intended for self-consumption may nevertheless find their ways into the hands of the others.

11.For the quantity involved, the sentence falls into the sentencing bracket of 4 to 6 years. For 44.75 grammes of drugs for trafficking, it should attract a sentence of 6 years as the starting point. I take into account of the mitigating factors and the fact that half of the drugs was for his self-consumption, I adopt a starting point of 5 years, reduce to 40 months to reflect the defendant’s guilty plea.

12.The defendant commits the present offence during the suspended period of imprisonment, I also activate the 2 months’ suspended sentence, and these 2 months are to be run consecutively to the 40 months’ imprisonment.