HKSAR v. Chan Wai Hung

DCCC 999/ 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.999 OF 2009

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Reasons for Sentence

1.The defendant faces one charge of “trafficking in a dangerous drug”, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. It is alleged that the defendant on 17^th July 2009, at the lift lobby of 36^th floor, Ying Yat House, Yat Tung Estate, Tung Chung, Lantau Island, unlawfully trafficked in a dangerous drugs, namely 41.36 grammes of a powder containing 24.52 grammes of ketamine.

2.The defendant pleaded guilty, admitted to the summary of facts and was duly convicted.

Summary of Facts

3.At about 7:41pm on 17^th July, 2 police officers were patrolling at the lift lobby of the charge address when one of them (“PW1”) saw the defendant, who was standing about 6 feet away, carrying a plastic bag in his left hand. Upon seeing the police officer, the defendant threw the bag on to the ground and fled.  PW1 gave chase and intercepted the defendant. PW1 picked up the bag, arrested and cautioned the defendant.

4.Government chemist confirmed that the bag contained 3 plastic bags containing a total of 41.36 grammes of a powder containing 24.52 grammes of ketamine.

5.The average retail price for ketamine in July 2009 was HK$114 per gramme. The quantity of ketamine in question could have sold at street level to abusers for HK$4,715.

6.The defendant agreed to the final paragraph of the summary of facts where it is stated that at all material times, the defendant trafficked in a dangerous drug, namely 41.36 grammes of a powder containing 24.52 grammes of ketamine.

Previous

7.The defendant is of clear record.

Mitigation

8.The following was put forward in mitigation. The defendant is 24. He came to Hong Kong with his family from Gwei Zhou in 1999 when he was 14. The defendant came to Hong Kong together with 4 younger brothers and his mother. Two of the brothers are presently unemployed, one of them a student.

9.Since arriving in Hong Kong, the defendant had difficulty catching up with the education system in Hong Kong. Furthermore, as the eldest son he had to look after his siblings and so he only managed to complete education up to F.2 level.

10.The defendant did manage to find continuous employment, last working as a delivery worker earning around $8,500 per month. Out of that, he contributed $2,000 to his mother and he also helped in the upkeep of his brothers.

11.All was well until the end of 2008 when the defendant lost his job. He remained unemployed for about 6 months. Money became very tight and the defendant felt quite lost since this had not happened to him before. Under some bad influence from his peers the defendant committed the present offence hoping to make some quick money, hugely underestimating the consequences. Now he realized it was foolish to have done so.

12.It was put forward in mitigation that although the defendant’s family is not wealthy they are happy and close. Now the harmony had been shattered. The hardest thing was for the defendant to tell his mother what had happened. The family still support him and the defendant is prepared to shoulder the responsibilities for what had happened. He is extremely remorseful. The defendant is not a drug dependent. He had pleaded guilty after counsel was assigned and informed the prosecution early of his guilty plea. The defendant is only 24, there is still a good future before him and he undertakes to the court that he will not re-offend. He asks for leniency, and hopes to look after his mother and wishes to contribute to society and not be a burden in the future.

Sentencing tariff

13.The sentencing guidelines for trafficking in ketamine set down in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006 applies:

“95.  We indicate the following tariffs for sentence after trial for traffickers in ketamine and ecstasy:

…(3)     10 to 50 grammes – 4 to 6 years’ imprisonment;”

Sentence

14.I have been assisted by counsel for the defendant with a solid mitigation. I note that the defendant is someone of previously good character. However, the circumstances of the case are such that there are no mitigating factors strong enough to compel me to deviate from the sentencing guidelines. I have no choice but to apply the guidelines.

15.Taking the quantity of ketamine involved as closest to 25 grammes, I find that a proper initial starting point is 57 months’ imprisonment. Granting a 1/3 discount for his guilty plea, the total sentence would have been 38 months’ imprisonment. I will however deduct 1 month from this sentence since the quantity involved was slightly less than 25 grammes. The defendant is therefore sentenced to 37 months’ imprisonment.