HKSAR v. Wong Kai Ming
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DCCC196/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO.196 OF 2010 ---------------------------
--------------------------- Reasons for Sentence --------------------------- 1.The defendant pleaded guilty to 1 count of trafficking in dangerous drugs, admitted to the summary of facts and was duly convicted. 2.Particulars of the charge are that the defendant on 2nd January 2010 at the rear lane of L & D House, Nos. 2-4 Cameron Road, TST, unlawfully trafficked in a dangerous drug, namely 26.21g of powder containing 20.74g of Ketamine. Summary of Facts 3.At around 1:57am on the charge date, Police officers including PW1 spotted the defendant and his friend walking along Cameron Road. The defendant was walking in front whilst his friend followed behind. They walked into the rear lane of L & D House. 4.PW1 and his colleague followed the defendant and his friend into the rear lane, intercepted them and revealed their identities. The defendant was searched and PW1 found from the right front pocket of the defendant’s pants 2 transparent resealable plastic bags containing suspected Ketamine (exhibits P-1 and 2). 5.The defendant was arrested and cautioned. Under caution, the defendant claimed that P-1 and P-2 were Ketamine and they were for his own consumption. 6.A video recorded interview was later conducted with the defendant. The defendant claimed in the interview, inter alia, that he was unhappy after quarrelling with his girlfriend and therefore bought P-1 and P-2 from his friend “Ah Ming” whom he ran into on the street earlier the same day. He paid HKD1,800 to “Ah Ming” for P-1 and P-2 and he intended to bring them home for self-consumption. The defendant claimed that he went to the rear lane with his friend because they wanted to pee. They were going to go to a disco at New Mandarin Plaza afterwards. 7.Government chemist analysed P-1 and P-2 and certified that P-1 contained 15.03g of powder with 11.89g of Ketamine and P-2 contained 11.18g of powder with 8.85g of Ketamine. 8.Paragraph 6 of the summary of facts states that at all material times, the defendant possessed P-1 and P-2 for the purpose of trafficking. Therefore in sentencing I do not have to consider whether part of the drugs were for the defendant’s self-consumption. Previous convictions 9.The defendant has 3 previous convictions, one for possession of dangerous drugs and his latest conviction on 25th September 2008 was for one charge of trafficking when he was sentenced to 22 months’ imprisonment. The defendant was released on 24th October 2009, he was put under a supervision period by the CSD. The present offence was committed whilst under that supervision. Mitigation 10.The following was put forward in mitigation on behalf of the defendant. 11.The defendant was born in Hong Kong in 1988, now aged 21. He completed Form 5 level education in Hong Kong. He was working as a salesperson at the time of his arrest for this case. The defendant claims that he is a Ketamine addict. He is single and lives with his parents. 12.The defendant is an only child, his father passed away in the very first month of his birth and his mother became the sole breadwinner of the family while the maternal grandmother looks after the defendant. The defendant had an uneventful childhood. Although the defendant is quite close to his grandmother, his mother was too busy making ends meet to communicate with him or understand him. The defendant did ordinarily in primary school. He was accepted into secondary level of a reputable school. When he reached F.3 level, his academic standard dropped drastically and was unable to secure a place in F.4. The defendant transferred to another school to continue with his studies. He took his HKCEE but the result was less then satisfactory. 13.In order to lighten the burden of his mother, the defendant started to work part time in a fast food shop when he was in F.4, which was why he could not focus on his studies. As soon as he completed F.5, he decided not to continue school. He continued with his part time work and later became a salesperson for the company i-Cable. He did quite well in that first job, earning about $20-30k per month through commissions. Later on, he changed to work for PCCW as a salesperson. Probably due to the change of his living habit, he came to know a number of peers and came into contact with drugs and became an addict of Ketamine shortly after he started to work full time. 14.The defendant first got into trouble in 2006 and he was given a Probation Order. He had good relationship with the Probation Officer and fulfilled all conditions set out in the Order. In 2008, the defendant was convicted for possession of dangerous drugs and was sent to DATC. Within 1 month from that sentence, on 25th September 2008, the defendant was sentenced for trafficking in dangerous drugs. The DATC order lapsed and he was transferred to serve as a young prisoner. He did not have the benefit of the full DATC treatment. 15.The defendant was released from Pik Uk Prison on 24th October 2009. He took up a job in a furniture shop, earning $20 per hour with long working hours. He felt he was being looked down on by his colleagues and employer. Shortly after that, the defendant began working in a cyber café. He came into contact with undesirable peers in the café and began using drugs again. 16.In the defendant’s video recorded interview, he explained frankly to the police how he came to be in possession of the dangerous drugs at the time of the arrest. Soon after his arrest, he had informed those helping him that he was willing to plead guilty to possession of dangerous drugs. After counsel’s advice, the defendant is willing to admit his guilt and he said that, apart for his own consumption, it may be shared among his friends, therefore would come within definition of social trafficking. 17.The defendant understands that the sentencing tariff in the case of Hii Siew Cheng applies, but he is truly remorseful and urge for leniency and wish to have a chance to rehabilitate. Mother has written a letter in mitigation. The defendant has a close relationship with maternal side of his family and a great number of his maternal relatives has put their signatures in support of the defendant in mitigation. The gist of the letter is that his uncle and aunt are all willing to help the defendant with job opportunities. 18.In relation to the young prisoner supervision mentioned earlier, when the defendant was discharged he was less than 21 years’ old. for this type of prisoner, the CSD would like to give them more guidance, with a view to help them to rehabilitate and to try to get back into society. There are no consequence for this so called breach. 19.Although the defendant is a drug addict, he was transferred to prison and have not had the benefit of the DATC. It was submitted by Ms. Cheng that if I am mindful to consider his young age, I should call for a background report so that more information can be gathered to assist in sentencing. Sentencing tariff 20.The guideline sentence for trafficking in Ketamine is set down in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006. The sentencing tariff for trafficking between 10-50g of Ketamine is 4-6 years’ imprisonment. Sentence 21.The defendant is relatively young, but his age does not fall within the extreme youth category and should not carry much weight in terms of mitigation. Furthermore, it is this court’s experience that in recent months a large proportion of trafficking cases are committed by people of the defendant’s age group and it is therefore necessary to send out the message that should they choose to engage in such illegal activities, they will have to bear the full consequences for their actions. 22.The defendant is not someone of clear record. He had been convicted of trafficking in dangerous drugs once already in 2008 when he was sentenced to 22 months’ imprisonment. He was released on 24th October 2009 and was put under supervision by the Correctional Services Department. This present offence was committed during this period of supervision on 2nd January 2010. Although I am told that breach of this supervision does not carry legal consequences, I find that it must be a strong indication of the defendant’s scant regard for the law. 23.I am invited to seek a background report for the defendant but I do not think that will be helpful because Ms. Cheng has already provided a lot of information to this court in mitigation. It is unnecessary also because based on what I have heard about the background of the defendant from Ms. Cheng, given the serious nature of the charge that the defendant had pleaded guilty to, the contents of such a report will not have much bearing on the sentence. 24.The amount of Ketamine involved in this case is 20.74g. Applying Hii Siew Cheng would bring us to the starting point of 54 months’ imprisonment. I find that the fact that the defendant committed a similar offence of trafficking in dangerous drugs only 3 months after his release from prison and whilst he was still being supervised by the Correctional Services Department an aggravating factor. I will raise the starting point by 3 months accordingly, bringing it to 57 months’ imprisonment. Granting the defendant the full 1/3 discount in recognition of his guilty plea, the defendant is sentenced to 38 months’ imprisonment. 25.Perhaps the relatives of the defendant who signed the letter in mitigation can make good their promise and help the defendant back on his feet after his release from prison, which they seemed to have failed to do the last time.
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