HKSAR v. Tai Ka Wai

DCCC711/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 711 OF 2010

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Reasons for Sentence

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1.The defendant has pleaded guilty to a charge of trafficking in dangerous drugs. The particulars are that on 13 April 2010 on board a private car in Ngau Tau Kok in Kwun Tong, he trafficked in 3.43 grammes of cocaine and 9.69 grammes of ketamine.

2.The facts admitted by the defendant disclose that on 13 April, officers were on patrol when they saw a vehicle on Ngau Tau Kok Road.  The behaviour of two passengers in the back of the vehicle attracted the officers’ attention, they stopped the vehicle.  The defendant was found in the rear of the vehicle, and inside the ashtray chamber behind the front seat of the vehicle, the police came across the drugs, the subject of the charge. There were a total of 7 packets of ketamine and 15 bags of cocaine.

3.The street value of the ketamine was $1,938. The street value of the cocaine was $5,145.  At that time the defendant was in possession of just over $1,800 in cash. 

4.The defendant has a clear record.  He is 26.  He was educated in Hong Kong to Form 3 standard and he lives with his parents.  He has two younger brothers who are still at school.  His father is aged 60, works as a kitchen worker earning some $10,000 per month.  Until shortly prior to his arrest, the defendant was working as a chef at Fairwood Fast Food Company Limited and was earning $13,000 per month from that employment, and much of that employment was given to the family.  He was the major contributor to the family finances. 

5.I am told that he resigned from his position as a chef some 9 days before the offence was committed.  And having resigned, he was given unpaid holiday leave and other payments totalling some $26,000.  And on 13 April he had with him initially $6,000 of which he spent $4,500 purchasing the drugs, the subject of the charge.

6.In his record of interview with the police, he told the police that he is not a drug addict but he does use drugs socially and has done for some time.

7.He said that on the night in question he purchased these drugs and that some of the drugs were for his own use.  But his birthday was going to be a few days after the date of his arrest and most of the drugs were for consumption on a social basis by friends who were to attend a birthday party which he had planned.

8.I am told of the seven drugs of ketamine found in his possession, only one was for his own consumption, six was going to be for his friends.   Of the 15 packets of cocaine, three were for his own consumption and 12 for his friends.

9.Placed before the court have been letters from the defendant’s mother and also his former employer.

10.His mother asks for leniency and says that he has been a very attentive son and one of the main breadwinners of the family. His father is aged 60 and unfortunately his mother suffers from diabetes and high blood pressure with diabetic eyes, and she was very upset obviously and surprised about her son getting into trouble over these matters.

11.The manager of Fairwood Fast Food has sent in a letter describing the defendant as being a reliable and good worker who carries out his job responsibly. 

12.Other than the guilty plea, two major factors have been urged upon me by way of mitigation.  The first of those being that not all the drugs were for his own consumption, some of the drugs were for the consumption by his friends; and that he was not intending to dispose of the drugs on a commercial basis, and the sort of dealing is referred to as social trafficking. 

13.I have been referred to the case of Wong Suet Hau and another and I note from that case that for social trafficking involving small quantities of drugs, such offences could properly fall into the lower rank of the applicable sentencing scale, and it gives by way of an example an individual who purchases a small quantity for recreational use for himself and his partner who has previous experience.  However, it goes on to say, “This factor should not in itself provide a general basis for imposing a lighter sentence.”

14.The court goes on to state that making fine distinctions between the different forms of trafficking and the motives behind them would undermine the core policy of providing consistent levels of sentencing for traffickers based on the weight of the narcotics involved.

15.If we look at the charge itself and were to consider the individual quantities of drug involved, 3.42 grammes of cocaine would normally attract a sentence of about 2½ years’ imprisonment and 9.69 grammes of ketamine would attract a sentence of about 4 years’ imprisonment.  And I intend to adopt a combined approach in this particular case.

16.Clearly, in terms of sentencing, the more serious sentence would be for the possession of the ketamine which would attract, in ordinary circumstances, a sentence of 4 years.  And in respect of the cocaine, that would attract a sentence of 2½ years.

17.Having considered the mitigation that has been put forward, I would reduce those starting points to reflect two matters, firstly, the fact that the drugs were not all for his own consumption; and, second, that there was an intention for these to be trafficked on a social basis rather than on a commercial basis.  Those features, if I were dealing with these matters separately, I would have imposed sentences of 2 years for the cocaine and 3½ years for the ketamine. 

18.I have considered the combination and held that it should affect the sentence.  Clearly, the combined effect of the drugs is that a higher sentence has to be imposed in the reflect that there are two drugs involved.  I take the view in this case that the overall starting point for the combination of the drugs, and taking into account the mitigating features, should be a sentence of 4 years’ imprisonment.  I then reduce that sentence by one-third to reflect the guilty plea which has been entered, and that will reduce the sentence to one of 32 months’ imprisonment.

19.So in respect of this offence, the defendant will go to prison for 32 months.