HKSAR v. Leung Ho Man

DCCC385/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 385 OF 2009

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Reasons for Sentence

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1. The defendant has pleaded guilty to one charge of trafficking in a dangerous drug.  I have heard the admitted facts and convicted him of that offence on his own plea and his admission of those facts.

2. The facts the defendant accepted were that on 2 February this year police officers conducted an anti-dangerous drugs operation at a room in the Wah Kwai Estate.  The defendant arrived there with some other people and used a key to open the door to the room.  The defendant was taken into the room. 

3. The room was searched and inside the room a scale and a plastic bag containing 81 transparent plastic bags were found on a bookshelf in the living room; 4 transparent plastic bags containing suspected dangerous drugs, 16 transparent plastic bags and 12 transparent plastic bags containing suspected dangerous drugs, 2 drinking straws and a rolled $20 banknote were found inside a bedroom.

4. Under caution, the defendant said himself and Ah Lun, who is Cheng Ka-lun, a 16-year-old boy who has already been sentenced, bought the ketamine and cocaine for their own consumption.

5. The defendant said that he and Ah Lun contributed $2,000 and $1,000 respectively to purchase the ketamine and cocaine.  They had spent $3,000 on it from a person called Ah Ming at a cyber café.  They were going to use drinking straws and banknotes to sniff small amounts of this substance.

6. As far as the narcotic content of the drugs were concerned, there was 15.74 grammes of ketamine and 3.05 grammes of cocaine.

7. The prosecution say that the 1st defendant was in possession of the drugs for the purpose of unlawful trafficking.  It would firstly be on the basis of sharing the drug with Ah Lun and also on the basis that the trafficking paraphernalia that was found would lead to the likelihood that some part of the drugs themselves would be sold on to others besides himself and Ah Lun.

8. The defendant has a somewhat chequered past, I think is how it could be described.  He has convictions for theft back in 2003 and 2004 for which he was placed on probation.  More recently, in 2008, he has convictions for possession of dangerous drugs and again placed on probation.

9. The defendant is now 22 years old, and from a Background Report, it is clear the defendant has had a very unfortunate background and has been described by the Probation officer as being, “Nobody’s child, born in a welfare family of hard core drug addict parents.”  He said,

“Due to the negligence of his parents, he had grown up in the Po Leung Kuk Children’s Home and only restored home at the age of 15.  His father was using the social welfare money to indulge in vice habits.  The defendant was always penniless and hungry and this led to the theft offences he became involved in.”

10. His parents died in 2006 and 2008 respectively and his elder sister ran away so the defendant had to cope with a lot of difficult circumstances in that period, and one of the ways  that people cope with these severe stressors is to indulge in taking drugs, which is what the defendant did.  The defendant is described as having a weak personality and has no family support and so he would find it very difficult to rid himself of his current desire for drugs.

11. As I said, the defendant comes from a very unfortunate background and one has some sympathy with him.  As a result of that, he has not had a good start in life; life has been hard for him.

12. As far as the sentencing is concerned, there are very well-known tariffs for these offences, and very recent ones for the offence of ketamine. 

13. I note the position of the defendant’s co-defendant where an overall starting point of 57 months was taken, which was reduced to 38 months for his plea of guilty.  The co-defendant was younger, he was 16 years old, but there is nothing to say that his culpability was any less than the defendant’s in this offence.

14. The calculation of 57 months’ starting point would appear to be on the basis of taking a 4 year starting point for the ketamine and adding 9 months in for the cocaine, and then from the 57 months’ starting point for the overall drugs reducing it by one-third to 38 months.

15. Is there any reason why I should take a different approach for this defendant?  Well, the defendant is older but there is no suggestion that he took the lead in this and, as I say, the defendant’s background may have led him to be very immature in some ways, so I do not believe the age difference is a significant factor in sentencing him.

16. Secondly, it is clear that the two boys, as it were, were going to share the drugs amongst themselves, but I did take the view to Mr Yeung that it would appear to be that the drugs could also be trafficked on the basis of the paraphernalia there was for trafficking, but the fact that the drugs were for sharing is trafficking.  The courts have said that in social trafficking cases the tariff is still applicable.  It may have been that these two would consume some of the drugs and, if need be, sell some to obtain funds.

17. Having taken all these factors into account, I consider that I should adopt the same approach as the sentencing court for the 2nd defendant. 

18. Given the quantity of ketamine, the starting point, in my view, would be in the region of 48 months’ imprisonment.  That will be altered by a further 9 months because of the fact that cocaine was also found together with the ketamine.  That means I take an overall starting point of 57 months’ imprisonment.  I will reduce that by one-third for the defendant’s plea of guilty to 38 months’ imprisonment, and that will be the sentence for this defendant.