HKSAR v. Ma Lok Man, Rodman and Another

DCCC 345/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 345 OF 2009

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BETWEEN

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Reasons for sentence

1.The defendants plead guilty to one count of trafficking in a dangerous drugs.[1]  There were two packets of drug found.  Each packet was 21.49g of ketamine[2].  The total weight was 42.98g of ketamine.

2.At about 10pm on 4/2/09, the defendants were seen by two police officers at Tung Choi Street acting furtively.  The officers subsequently stopped the defendants.  Upon search, a cigarette box containing the two packets of ketamine as set out in the charge were found from the right front pocket of D1’s trousers.  There was nothing suspicious found on D2.

3.D1 admitted under caution that he bought the two packets from Sheung Shui.  One packet was for his own consumption and the other was bought for D2 at a price of $1,000.  D1 admitted through his lawyer that about half of the packet kept by him would be shared with others.

4.D2 admitted under caution that D1 bought one packet for him.  He also admitted through his counsel that he was going to share about half of the drug with 6 to 7 friends later on.

5.D1 is 23 with a clear record.  He received education up to Form 5.  He had worked in a hair saloon prior to this offence.  He lives with his parents who earned about $8,000 each month.  He is remorseful and cooperates with the police.

6.D2 is 23.  He has one previous conviction of theft in 2004.  he studied up to Form 5.  He is single and needs to support his parents.  He has one elder brother and one sister.  He indicates that he share about half of the drug with 6 to 7 friends.  He has been doing that in the past.  The rest was for his own consumption.

7.The guidelines in Secretary for Justice v HII SIEW CHENG CAAR 7/ 2006 is applicable in this case. As Stuart-Moore VP pointed out, these guidelines are meant to be deterrent sentences.

“The guidelines are intended to deter traffickers who frequent such premises where young people are likely to be.  In very many instances, it is likely to be the small-time pushers of drugs, often with a mere handful of tablets to supply to others, who shoulder the responsibility for taking young people off the rails and starting them on a path of self-destruction through drugs.”

8.While the defendant maintained that part of the drugs were for treating friends, I do not think this is the kind of “social trafficking” which warrants a lighter sentence given the amount of ketamine involved.  In this regard, I bear in mind the comment of the Court of Appeal in HKSAR v Wong Suet-hau and Anor [2002] 1 HKLRD 69:

“In our opinion, while some of the ‘social’ or ‘non-commercial’ trafficking cases involving small quantities of drugs can properly be regarded, when all the circumstances are examined, as falling into the lower end of the sentencing scale applicable to the dangerous drug in question, we are firmly of the view that this factor should not, in itself, provide a general basis for imposing a lighter sentence, than would have been imposed for commercial trafficking. The ‘friend’ who starts off or perpetuates another’s abuse of drugs, is as dangerous to the community as the commercial supplier of small quantities, who will generally traffic in drugs with those already addicted.”

 9.Having considered the background of the defendant and the amount of the ketamine involved.  I do not find any mitigating factor which justify leniency.  I make the following order :

a. For D1, I take it that he trafficked in 32.24g of ketamine and 10.74g would be for his own consumption[3].  I take a starting point of 63 months as the starting point.  I give one-third discount for his plea.  I sentence the defendant to 42 months imprisonment.

b. For D2, I take it that he trafficked 10.74g of ketamine by sharing with his friends and consumed 10.74g.  I take 51 months as the starting point.  I give one-third discount for his plea.  I sentence the defendant to 34 months imprisonment.

[1]Contrary to s.4 (1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

[2] The drug seized was not weighed separately by the Government Chemist.  The Prosecution and the defendants agreed that each packet was of equal size weighing 21.49g.

[3] This is the total weight of one and a half packet of ketamine found on him.