HKSAR v. Tang Kwok Ho

DCCC761/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 761 OF 2009

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Reasons for Sentence

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1.The defendant, Tang Kwok-ho pleaded guilty before me to one charge of Trafficking in a Dangerous Drug.

2.The defendant admitted that on 3 June 2009 at Room B1010, King Wah House, Shan King Estate, Tuen Mun, New Territories, he did unlawfully traffic in a dangerous drug, namely 11.70 grammes of a powder containing 10.6 grammes of ketamine.

3.In the afternoon on 3 June 2009, police officers mounted an anti-dangerous drugs operation at the premises in question. The officers kept the premises under observation and at around 4.30 pm the defendant was seen returning to the premises on his own. The officers intercepted the defendant and conducted a search inside the premises. The police officers found the following items inside a cabinet next to the defendant’s bed; a) two plastic bags containing suspected dangerous drugs, P1 and P2; b) one paper packet containing traces of suspected dangerous drugs, P3; c) an electronic scale; and d) 79 empty transparent resealable plastic bags.

4.The defendant was arrested. Under caution he admitted that the items found inside the cabinet belonged to him. In a subsequent cautioned interview the defendant admitted inter-alia that; a) P1 and P2 were ketamine; b) he purchased the ketamine from a male called Ah Man in Yuen Long on 1 June 2009 for $800; the quantity he bought was around 14 to 15 grammes; c) he used a paper packet and a small plastic bag to consume some of the ketamine found in the premises; d) he used the electronic scale to check the quantity of ketamine after purchase to ensure that he was not deceived and the empty plastic bags were used for convenient carriage; e) he sold ketamine to his friends for $100 per gramme for seven or either times in the past; f) he had not sold any ketamine found in the premises; g) he was a part-time construction worker with a monthly earning of around HK$7,000 to HK$8,000; h) he had been addicted to ketamine for around 4 years.

5.The Government chemist examined P1, P2 and P3 and certified that; a) P1 contained 11.59 grammes of a powder containing 9.99 grammes of ketamine; b) P2 contained 0.01 grammes of a powder containing ketamine; and c) P3 contained 0.10 grammes of a powder containing 0.07 grammes of ketamine.

6.The defendant had the following convictions recorded against him. In 1998, he was convicted of assault occasioning actual bodily harm and was placed under probation and supervision for 18 months. In 2005 he was sentenced to prison for a case of being a member of a Triad society. The sentence then imposed was two months and one week. In 2006, the defendant was convicted of obstructing a police officer in the due execution of his duty. He was sentenced to 3 months’ imprisonment.

7.In 2008, the defendant was convicted of possession of dangerous drugs and was placed under probation supervision for 24 months. In April 2008, the defendant was found in breach of the probation order and he was sentenced to DATC. The probation order was discharged.

8.Mr Man, in mitigation told me the defendant was locally born and is now aged 27 years old. He is the only child of the family. After the defendant finished Form 3 at the age of 16 he completed a course for construction training. He started to work at the age of 18. He took up various works at various building sites. When the defendant was 16, he was convicted of assault occasioning actual bodily harm and was placed under a probation order.

9.After the defendant had served the sentence for being a member of a Triad society in 2005, he became acquainted with some undesirable friends. Worse still he took up the bad habit of taking drugs. After the defendant was released from Drug Addiction Treatment Centre in August last year, he met his undesirable friends again. The defendant resumed his habit of taking drugs. The defendant earned $8,000 per month and he would contribute $2,000 for maintenance of his family and he would spend around $1,000 to $2,000 on drugs.

10.Mr Man told me the defendant was not a professional drug trafficker. The defendant would take part of the drugs and sold part of them to his friends. The defendant took drugs because firstly, he was under the influence of the undesirable friends; secondly, as the defendant’s employment was unstable and he was employed on a casual basis, the longest he would work would be for a period of 2 to 3 months and after which the defendant would have to find a new job.

11.The defendant took drugs in order to release himself from the real world. The defendant is now aware of the harm of drugs on him. As a result of consuming drugs the defendant now finds pain in urinating. In the past he had taken 4 to 5 grammes a day but prior to his arrest he was able to cut it down to 1 gramme of ketamine per day. The defendant is now aware that it was stupid for him to take drugs.

12.Mr Man asked me to take into account the background of the defendant that he has been working all along and he is a holder of a licence in the construction industry. He urges me to bear in mind these matters and pass an appropriate sentence on the defendant.

13.In sentencing the defendant I have considered the quantity of the drugs and the nature of the drugs in question. I have considered the facts of this case as admitted by the defendant, the previous convictions of the defendant and all the matters urged on his behalf by Mr Man today.

14.According to the tariff as set down by the Court of Appeal in Hii Siew Cheng for the drugs in question, 4 years would have been appropriate after trial. In this case, Mr Man told me the defendant had been selling drugs to his friends in the past and for the drugs that the defendant had purchased, in this case, he would consume part of the drugs and he would sell part of them to his friends.

15.The defendant admitted to the police that the quantity of ketamine he bought was around 14 to 15 grammes. I take it that the defendant was talking about the mixture and not the narcotic content. The police found 11.70 grammes of a mixture containing 10.06 grammes of ketamine inside the premises.

16.For the claim that the defendant would sell part of the drugs to his friends, I follow the approach taken by the Court of Appeal in the case, Wong Suet-hau, Ice, CACC 366 of 2000. It is clear that it cannot amount to a mitigating factor that the defendant intended to sell part of the drugs to his friends. Selling drugs to friends brings about as much evil as selling drugs to strangers. As the defendant was addicted to drugs, he must have realised how much harm the drugs will have caused to his friends. The fact that the defendant intended to sell part of the drugs to his friends cannot afford the defendant any mitigating factor.

17.For the claim that the defendant intended to consume part of the drugs he purchased, if the defendant only intended to consume a small part of the drugs that he purchased, it would have little effect on the sentence that the court would impose. If the defendant intended to consume a substantial part of the drugs he purchased, according to the approach taken by the Court of Appeal in Wong Suet-hau, Ice, bearing in mind that possession of dangerous drugs in itself would carry punishment and bearing in mind the factor of latent risk, if the defendant intended to consume a substantial part of the drugs he purchased, it would only have a limited effect on the starting point that the court should take.

18.From the facts admitted by the defendant the police found an electronic scale and a large quantity of small plastic bags inside the premises, I am sure these items would be used by the defendant in the course of selling drugs to others and not, as he claimed, that he just wanted to make sure he was not deceived. Bearing in mind the background of the defendant that he had one previous conviction for possession of a dangerous drug in 2008, the number of packets containing the dangerous drug, the seizure of the electronic scale and the large quantity of empty transparent resealable plastic bags by the police, I am only prepared to accept the defendant would consume a small part of the drugs that were found by the police.

19.As said, 4 years would have been appropriate had all the ketamine found inside the premises were for trafficking. I am prepared to reduce the starting point to 45 months giving effect to the court’s acceptance that a small part of the drugs would be consumed by the defendant himself. The defendant is given one-third reduction for his guilty plea. That would bring the starting point down to 30 months.

20.Mr Man told me in mitigation that the defendant took drugs because he was under the influence of undesirable peers and he was trying to release himself from the real world. These factors, in my judgment, should not provide the defendant with any mitigating factor. They cannot even afford the defendant an excuse to take drugs let alone selling the drugs to others and spreading the harm of ketamine to his friends.

16.For the reasons given I sentence the defendant to 30 months’ imprisonment. The DATC supervision order is also discharged.