HKSAR v. Yeung Ka Po

DCCC82/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 82 OF 2010

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Reasons for Sentence

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1.The defendant pleaded guilty to 1 charge of "Trafficking in a dangerous drug". The dangerous drug involved is 28.47 grammes of ketamine.

Summary of Facts

2.At about 10:45 pm on 20 November 2009, 2 police officers saw the defendant wandering between the 10^th and 11^th Floors of Hong Yam House, On Yam Estate, Kwai Chung. Feeling suspicious, they intercepted the defendant for enquiry.

3.The officers searched the defendant and found in his left front trouser pocket 4 plastic bags containing suspected ketamine powder. Under caution, the defendant said "Sir, I bought the K Chai for my own consumption. Because it was cheaper if (I) purchase more, I bought one piece from other to be consumed gradually."

4.In his subsequent video recorded interview, the defendant admitted, inter alia, that at about 5:00 pm on the day of his arrest, he met someone named "Ah Dee" in an amusement games centre located in Mongkok. He first purchased 6 grammes of ketamine from Ah Dee at $400. After trying the drug in a nearby toilet, the defendant decided to buy more hoping that he could pay less. He returned to the amusement games centre to negotiate with Ah Dee. Eventually, Ah Dee sold him 1 more ounce (28 grammes) of ketamine at $1,600. Ah Dee also gave him an extra 4 grammes of ketamine free of charge. Thereafter, the defendant went home to On Yam Estate. He hid all the ketamine in a fire hydrant located on the 12^th Floor of Hong Yam House (but he resided at Cheung Yam House). At about 11:00 pm on the same day, the defendant returned to the 12^th Floor of Hong Yam House. From the packet of 4 grammes, he poured out about 1 gramme of ketamine into a small re-sealable plastic bag for his own consumption.

5.The Government Chemist examined the 4 packets and confirmed that they are : 1 plastic bag containing 27.19 grammes of a powder containing 22.19 grammes of ketamine; 1 plastic bag containing 4.79 grammes of a powder containing 3.94 grammes of ketamine; 1 plastic bag containing 2.49 grammes of a powder containing 1.98 grammes of ketamine; and 1 plastic bag containing 0.44 gramme of a powder containing 0.36 gramme of ketamine.

6.The defendant now admits that he possessed the ketamine for the purpose of unlawful trafficking.

Mitigation & Sentence

7.The defendant is now 17 years old. He has 1 previous conviction in December 2007, but it was not related to drugs. He was given a Training Centre Order.

8.The defendant was released from Training Centre in May 2009. He is currently a F.4 student. His father runs a fruit stall. The defendant helps his father at the fruit stall to earn some pocket money.

9.In the course of mitigation, Mr. HO explained that the defendant purchased the ketamine primarily for his own consumption. He only intended to share some with his friends since the defendant and his friends would take turn buying. Mr. HO sought to rely on the Court of Appeal decision in HKSAR v WONG Suet Hau & another [2002] 1 HKLRD 69 and submitted that the defendant is a "social trafficker".

10.In my view, there is no such thing as "social trafficking". The criminality of buying drug for friends and then sharing it with them is just the same as acting as a courier or seller. Furthermore, there is simply no evidence as to how much the defendant intended for his friends and how much for his own use.

11.The Court of Appeal has in WONG Suet Hau expressed clearly its disapproval of the so-called "social trafficking" :

"It is the very fact of supply or, in the case of couriers and storekeepers, making possible the supply to others, which in trafficking, whether for commercial gain or not, needs to be dealt with rigorously. Making fine distinctions between different forms of trafficking and the motives behind them will, in our view, only serve to undermine the core policy of providing consistent levels of sentencing for traffickers based on the weight of the narcotics being trafficked."[1]

"The evil behind all aspects of trafficking in drugs, which the courts have a duty to deter, is ultimately the supply of dangerous drugs to the public, whether or not this is done for financial gain."[2]

"In our opinion, while some of the 'social' or 'non-commercial' trafficking cases involving small quantities of drugs can properly be regarded, when all the circumstances are examined, as falling into the lower end of the sentencing scale applicable to the dangerous drug in question, we are firmly of the view that this factor should not, in itself, provide a general basis for imposing a lighter sentence, than would have been imposed for commercial trafficking. The 'friend' who starts off or perpetuates another's abuse of drugs, is as dangerous to the community as the commercial supplier of small quantities, who will generally traffic in drugs with those already addicted."[3]

12.The quantity of ketamine involved in the present case is not small by any standards. The facts do not offer the slightest suggestion that the defendant is an individual who purchased a small quantity for recreational use and gave part of it to his partner to consume at a social occasion. I will sentence him on the basis of the entire quantity of ketamine seized.

13.A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment. Based on section 109A(1A) of the Criminal Procedure Ordinance (Cap.221) and owing to fact that the defendant committed the present offence not long after his release from Training Centre, I took the view (and Mr. HO agreed) that it was unnecessary to obtain any pre-sentencing reports.

14.The sentencing tariff for trafficking in ketamine is laid down in SJ v HII Siew Cheng [2009] 1 HKLRD 1. For 10 to 50 grammes, the sentence ranges from 4 to 6 years imprisonment. For 28.47 grammes, I adopt a starting point of 5 years. One-third discount is given for the guilty plea, reducing the sentence to 3 years and 4 months (40 months). I will give a further reduction of 4 months to reflect the defendant's young age. Apart from this, I see no other mitigating factors which warrant any further discount. The sentence I pass is therefore 3 years.