HKSAR v. Chan Ho Nam, Morris

DCCC1041/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1041 OF 2009

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Reasons for Sentence

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1.Defendant, please remain seated whilst I give my reasons for sentence.

2.Defendant, you have pleaded guilty to a single offence of Trafficking in dangerous drugs contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

3.You admitted the brief facts and I convicted you.

4.Those facts were as follows. About 2340 hours on 22 July last, police officers were conducting operations at staircase B, 23rd(35th?) Floor, Tat Fu House, Po Tat Estate, Po Lam Road, Sau Mau Ping.

5.They intercepted you and searched you. In the right rear pocket of your jeans they found a plastic bag containing powder. Under caution you admitted that it was ketamine and you intended to treat your friends. You were arrested.

6.At 1650 hours on 23 July 2005(2009?), you gave an interview under caution and admitted inter alia that: (i) the powder, the substance found in your jeans was ketamine, which you had bought from Ah Kit for $800; (ii) Ah Kit asked you to get the ketamine at the fire hose of the staircase on the 35th Floor of Tat Fu House, Po Tat Estate, which you did; (iii) you were intercepted as you were about to leave; (iv) you intended to treat your friends.

7.Later analysis of the substance revealed it to be 13.85 grammes of powder containing 11.82 grammes of ketamine. The estimated retail value of the dangerous drugs is about $1,578.

8.You admitted to three previous convictions and one breach of a probation order. None of those convictions were for similar offences.

9.In view of the fact that you are but 19 years of age and this is your first offence involving drugs, I adjourned the case for probation officer’s background report, a DATC report and a training centre report. Those reports are before the court, they have been read by me and understood by me.

10.I take it that you agree the contents of those reports as nothing has been said to the contrary. I note that you are deemed to be a drug dependent and considered suitable for DATC, but not suitable for training centre.

11.Mr Wong, in mitigation, urged me to follow that recommendation and adopt a rehabilitative approach given your age and the fact that the dangerous drugs were not of the highest amount.

12.Miss Fok, for Department of Justice, reminded me of the tariff laid down in Secretary for Justice v Hii Siew Cheng, CAAR7/2006, which said that for 10 to 50 grammes of ketamine, the suggested penalty should be some 4 to 6 years. That, of course, is after trial.

13.Also I am reminded that it should not be regarded as mitigation that the drugs were intended for social sharing.

14.I turn now to the sentence. Trafficking in dangerous drugs is a very serious offence indeed. The penalties are condign, youth and old age are not really mitigating factors, though I do bear in mind you are but 19 years of age. You have an undistinguished criminal record, although this is the first conviction involving drugs. I do accept that part of the drugs was for self-consumption and that you intended to supply the remainder to others. The exact amount for self-consumption must perforce be unknown.

15.Whilst DATC is attractive, especially as you have already served 5 months’ imprisonment on remand, in all the circumstances I do find this to be inappropriate given the amount of ketamine involved in this case.

16.I do note that at the scene of your arrest, you were entirely cooperative with the police and made follow-up admissions thereafter. That cooperation has been carried through to your plea of guilty before the court at the first available opportunity. Therefore, in recognition of your age, the fact that a substantial part of the drugs would have been for self-consumption and your cooperation at all levels, I do intend to impose a prison sentence but to take a slightly reduced starting point.

17.As I said, the level for this quantity of ketamine should be 4 to 6 years’ starting point. However, given the factors I have mentioned, I will adopt a starting point of 45 months. You will receive a discount of one-third for your plea of guilty, therefore you will go to prison for a period of 30 months, the 5 months on remand of course will count towards that.