HKSAR v. Tang Ho Man, Henry

DCCC992/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 992 OF 2009

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Reasons for Sentence

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1. The defendant appeared before me this morning and pleaded guilty to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.   

2. The particulars of offence avers that on 21 June, 2009, outside Park’N Supermarket, Lai Yiu Estate Shopping Centre, Lai Yiu Estate, Kwai Chung, New Territories in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 26.98 grammes of a powder containing 20.87 grammes of ketamine.

3. The facts of the case is simple enough.  According to the summary of facts which has been admitted by the defendant, at about 1.40 am on 21 June, 2009, two uniformed officers were patrolling outside Park’N Shop Supermarket, Lai Yiu Estate Shopping Centre at Lai Yiu Estate when they saw six persons, including the defendant, gathering in the above location and acting in a suspicious manner.  The two policemen then intercepted them for enquiry, and one of the policemen also seized a packet of suspected dangerous drugs (“E1”) on the ground next to where the defendant was standing. 

4. Under verbal caution, the defendant admitted that E1 was ketamine and belonged to him.  He also admitted that he had thrown E1 onto the ground when he saw the policemen.  He said that he had bought E1 from a male named “Ah Shing” in Mong Kok at HK$2,000 at 9 pm on the day before.  It was for self-consumption, claimed by the defendant.  In the summary of facts, the defendant however admitted that he was in possession for the ketamine for the purpose of unlawful trafficking. 

5. Although the defendant was only 18 years of age, he had three convictions records, including burglary and, most importantly, trafficking in dangerous drugs, of which he was convicted in September last year and was given a sentence of 3 years in the District Court. 

6. He had studied up to Form 3 and, according to mitigation, he quitted his schooling in the year 2005, after which he had been a construction site driver, and also, shortly before he was arrested for the present offence, he was a salon hairstylist assistant, earning a monthly income of about HK$6,000.  He is single and lives in Lai Yiu Estate, together with the mother and an elder sister. 

7. He was arrested for the present offence on 21 June, 2009. After clarifications with the prosecution, and also admitted by the lawyer representing the defendant, he committed the present offence whilst on bail.  This, of course by itself, is an aggravating factor.

8. Trafficking in dangerous drug is, of course, a very serious offence.  Traffickers would expect that once caught they will be dealt with severely by the court.  By now I believe the defendant should realise the consequences of this offence.  The subject matter of the dangerous drug in the present case is ketamine.  In recent years, due to the prevalence of ketamine, the Court of Appeal finally acceded to the request of the prosecutions to revise upwardly the tariffs for sentence of the traffickers after trial in the case of Hii Siew Cheng CAAR7/2006.  

9. Counsel for the defendant had correctly pointed out that, according to the new guidelines, in the present case the sentence for this quantity after trial will be around 4½ years.  Counsel for the defendant had also submitted the case of HKSAR v Wong Suet Hau, Ice CACC366/2000 and HKSAR v CHAN Sau Pang CACC487/2000 and urged me to consider imposing a lighter sentence on the ground that part of the drugs was intended for the defendant’s self-consumption, as he claimed after he was arrested. 

10.  According to the defence counsel, one fourth of the present quantity of the ketamine seized was for the defendant’s self-consumption.  When I consider this mitigation I bear in mind also what the Court of Appeal has said in paragraph 33 of Wong Suet Hau, Ice that the court will be slow to accept a bare assertion unsupported by confirmatory evidence, and they will remember that true cases of this kind, where the purpose of possession is mixed, will almost always involve small quantities, and they will have to bear in mind that the quantity accepted as having been intended for self-consumption carries a sentence in any event, and that this itself be aggravated for the latent risk factor, so that in most true mixed cases the difference in sentence, if any, will be slight. 

11. In particular, in this present case, in the situation of the defendant, when he was facing an enhancement of sentence on account of his committing the present offence whilst on bail of the other offence, I think the considerations of reductions on the grounds of self use will be offset with each other, so that the practical value of this mitigation is almost diminished.

12. In the end I was also supplied with two letters of mitigation.  I am not going to relate the contents of those letters, suffice it to say that the mother is, of course, very worried about the defendant and asks the court to be as lenient as possible.  The defendant himself had expressed his remorse, and he was sorry that he had committed this present offence without considering the consequence, and he wowed that he would learn from the mistake and to contribute to society after he was released from the prison.

13. The defendant is 18 years old.  Although he is young, he is by no means extremely young. His age alone will not attract any reductions in sentence.  Although section 109A of the Criminal Procedure Ordinance requires the court to consider any option of non-imprisonment before sentencing a young offender, because of the nature of this offence and because of his record, I am persuaded that the only suitable sentence in the defendant’s case is one of immediate imprisonment.

14. In the end I am going to use 4½ years as the starting point.  Because of the defendant’s plea in the present case, which is, as I find, the only mitigating factor, after giving him the one-third customary discount, the proper sentence for this case is one of 36 months’ imprisonment. 

15. Lastly, I have to consider the totality principle.  Although in principle the two cases (the present case and also the case DCCC268/2009), are two different cases which attract different sentence, and the sentence should be consecutive, because of the totality principle, I order that 16 months of the present sentence would run concurrent with his current sentence, which means that he only has to serve an additional 20 months sentence to his current sentence.