HKSAR v. Lo Tak Wai

DCCC292/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 292 OF 2010

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Reasons for Sentence

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The Charges

1.The defendant pleaded guilty to one count of possession of a dangerous drug, involving 4.04 grammes of a powder containing 3.33 grammes of ketamine. Such offence is contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134; and one count of trafficking in a dangerous drug, involving 18.4 grammes of a powder containing 13.21 grammes of ketamine. Such offence is contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

The Facts

2.The facts of the case can be summarised as follows:- The police officers were patrolling near the 1st floor staircase of Hing Lee Building at Baker Street, Hunghom, at about 1916 hours on 9 January 2010. They saw the defendant standing behind the door of the 1st floor staircase and peeping through the glass panel of the door three times before opening the door.

3.They then stopped the defendant and searched him. Upon search the defendant was found to have a set of three keys and a transparent plastic bag containing 4.04 grammes of powder containing 3.33 grammes of ketamine in his trouser pocket. Under caution, he admitted that the dangerous drug was for his own consumption and he was on his way out to buy food.

4.The police officers also conducted a search at the defendant’s residence at Room 1, Flat F, 6th Floor of Hing Lee building. As a result, 2 transparent plastic bags containing 18.4 grammes of a powder containing 13.21 grammes of ketamine were found inside a cushion; an electronic scale and a transparent plastic bag containing 26 empty re-sealable transparent plastic bags were placed on a table.

5.Under caution, the defendant admitted that the ketamine was for his own consumption and he would give it to his friends for consumption as well. The electronic scale was used to weigh the amount of the drug to be shared with his friends and the empty plastic bags were for packing the drug.

Defendant’s Background and Mitigation

6.The defendant aged 31 was working as a transportation worker earning $9,000 per month. He is married but separated. During the offence, the defendant claimed that his monthly income was $13,000. He has been a drug addict for 3 years and had to consume ketamine three times a day with about one gramme a day. In other words, he would have to spend quite a considerable sum of his monthly salary to satisfy this vice habit.

7.In addition, he chose to rent a place and live by himself leaving his only child, a 9-year old daughter, to live with his working parents. This court fails to see how he could be a responsible father and husband, as claimed by the defendant. Having spent so much money on drugs for himself and rental, one could easily see that very little money is left, even just for his own expenses.

8.This court holds a sceptical view of the defendant’s claim of generosity that substantial portions of the drug involved were for his friends as a treat and the supply of ketamine was without a profit being made by the defendant.

Sentencing Tariff

9.The court in HKSAR v Hii Siew Cheng, CAAR 7 of 2006, has laid down sentence guidelines for trafficking in ketamine after trial. For a quantity of narcotic contents between 10 to 50 grammes, a sentence ranging between 4 to 6 years is called for.

Sentence

10.Apart from a traffic offence of drink driving in December 1998, the defendant has no other conviction.

11.The subject matter of Charge 2, involving 13.21 grammes of ketamine: Having considered all the circumstances of the case, including the background of the case and of the defendant, his plea, mitigation, quantity of drugs and the sentencing tariff, this court would adopt a starting point of 4 years, i.e. 48 months. As the defendant is entitled to a one‑third discount for his plea, such term would then be reduced to 32 months. There were no other factors in this case which would justify a further reduction in sentence.

12.The defendant was initially found to have been in possession of 3.33 grammes of ketamine, the subject matter of Charge 1. This court will adopt a starting point of 12 months, which will be reduced to 8 months for his plea. Having taken into consideration all the circumstances, and in view of the overall criminality and culpability of the defendant, this court is prepared to treat the two offences to be closely linked and arisen out of the same transaction; hence, to impose concurrent sentences. As such, both sentences are to run concurrently. The total term to be served is 32 months’ imprisonment.