HKSAR v. Kong Chun Wai and Another

DCCC1400/2009

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1400 OF 2009

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Reasons for Sentence

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1.The 1st defendant in this case has pleaded guilty to two charges. The 1st charge is a charge of possession of dangerous drugs. He admitted possession of 13.73 grammes of a powder containing 11.5 grammes of ketamine. He also pleaded guilty to a charge of trafficking in 0.07 grammes of a powder containing ketamine. The 2nd defendant pleaded guilty to a charge of possession of 0.07 grammes of a powder containing ketamine.

2.All the offences were committed on the same occasion and at the same place. They were committed on 23 October 2009 outside Po Kong Village Road Sports Centre in Po Kong Village Road in Kowloon.

3.The facts admitted by the defendants disclose that on 23 October, shortly after 7 pm, police officers were patrolling in the vicinity of the Po Kong Village Road Sports Centre. When the police patrolled to the rear end of the Sports Centre, they saw five males standing in a circle near a flower trough. The officers kept observations from about 10 metres away. They saw the 1st defendant holding a packet of white powder and he appeared to be pouring it onto a piece of purple paper held by the 2nd defendant. The 2nd defendant was then seen to sniff the suspected dangerous drug.

4.Upon seeing the police officers, the 2nd defendant fled and tried to pour water on the piece of purple paper which turned out to be a $10 note. In the meantime, the officers saw the 1st defendant place a packet of what they suspected to be dangerous drugs in a flower trough which was next to him. Both defendants were intercepted and the defendants arrested. The $10 note was seized and found to contain traces of ketamine, and the packet which had been discarded by the 1st defendant was seized and found to contain 11.5 grammes of ketamine.

5.Under caution, both defendants denied the offence. Subsequent video interviews were conducted, and they elected to remain silent.

6.In the case of the 1st defendant, he has a clear record. In the 2nd defendant’s case, he has a conviction of a similar kind, but I note that it was in 2003. The report prepared in respect of the 1st defendant discloses that he was brought up in a middle-class Christian family with ample parental love and care. He failed his matriculation education and started to mingle with what is described as playful schoolmates in Band 5 high school. He frequented videogame centres with his peers and this led to an irregular work pattern. He started to abuse drugs in 2009. The defendant has a four-year-old son. He went to live in Guangdong in 2004 where he married his pregnant cohabitant, and they eventually gave birth to a son. Eventually, he gave up working in Guangdong to return to Hong Kong in 2007.

7.The report is generally unfavourable with regard to the defendant. It describes him as a complacent person.

8.The report on the 2nd defendant notes that he first transgressed the law in 2003, but afterwards he started to work steadily and maintained a regular contribution to his domestic finances. He expressed his regret for his involvement in the present offence.

9.The 1st defendant has placed before the court a letter expressing his remorse, and other letters of a similar kind have been placed asking for leniency.

10.The charge of trafficking, to which the 1st defendant has pleaded guilty, is obviously relating to a small quantity of drugs. It is 0.07 grammes of ketamine. Those were simply the traces left on the $10 note. The amount he actually trafficked was more than that because drugs were sniffed by the 2nd defendant.

11.I note also in relation to that offence that at the time it was committed, the defendant was in possession of a further 11.5 grammes of ketamine. There were five males standing in a circle round the flower trough. The offence took place near to a sports centre.

12.I have had a DATC report prepared and it says that he is suitable for DATC and that is recommended. However, having read the report and considered the circumstances, in my view, it would be sending out the wrong message for persons convicted in circumstances such as this to think that the drug addiction treatment centre would be appropriate. Were he convicted after trial in respect of trafficking in the amount of drugs he was found in possession of, he would have gone to prison for 4 years.

13.I have considered very carefully all the circumstances and I have decided that in the case of the 1st defendant, for the 1st charge, to take a starting point of 18 months’ imprisonment and reduce that to 12 months to reflect his guilty plea. On the 3rd charge, I also take a starting point of 18 months, noting the very high latent risk factor that exists in this case, and I reduce that to 12 months to reflect the guilty plea, and I order that 6 months of that sentence run consecutive to the 1st charge, making a total of 18 months’ imprisonment.

14.The 2nd defendant I fine $2,000.

(Discussion re time for paying fine)

15.I give you one week to pay it.