HKSAR v. Kong Ming Fai

DCCC 712/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 712 OF 2010

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Reasons for Sentence

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1.The Defendant has pleaded guilty before me to one charge of trafficking in a dangerous drug, namely 15.55 grammes of a powder containing 12.46 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.The facts admitted by the Defendant reveal that on 11^th May, 2010, police officers were conducting an anti-dangerous drugs operation on the 26^th floor, Ching Tai House, Tsz Ching Estate, Tsz Wan Shan. At about 1:20 a.m. on 11^th May, 2010, he was intercepted by 2 police officers at the staircase near Room 2620, when he was seen by them to be loitering there near the staircase. When the police officers revealed their police identities, the Defendant asked for a chance and said he was helping ‘someone deliver it’. Upon search, a plastic bag containing the dangerous drugs the subject matter of the charge was found from the right pocket of his shorts. The Defendant was arrested and cautioned, and under caution he admitted he was delivering the said dangerous drugs for a small sum of money. In the subsequent video record of interview, he admitted that he was delivering the said drugs for a male named ‘Ah Fa’, whom he had met at 12:30 a.m. that day and ‘Ah Fa’ had offered him $300 to deliver the drugs to an unknown male at a park near Ching Tai House. He had picked up the drugs which were concealed in the fire hose reel on the 26^th floor and was on his way to deliver it when he was intercepted by the police. At the time of his arrest, he had on him HK$1,680 in cash. The street value of the said dangerous drugs was estimated to be HK$1,679.

3.The Defendant is aged 29 years. In mitigation, I was told that the Defendant came from a middle class family background. His father had started a factory in China producing plastic flowers.  His father died 3 years ago, and he and his elder brother have been running the factory since.  He is paid a salary for his daily expenses.  His mother and elder brother were both in court to show their support of the Defendant.  He has had 3 previous court appearances, and his record dates back to 2004.  He has a previous conviction for possession of dangerous drugs in 2007, when he was fined $2,000.  I was told by Counsel that he was a drug addict, which was his main problem.

4.I adjourned sentence until today, calling for a background report on the Defendant.  The report is now before me and confirms most of what I have been told by Counsel.  I note paragraph 5 of the report wherein the Defendant denied the offence when interviewed by the Probation Officer and claimed the drugs in question were for his self- possession.  I am told by Defence Counsel that he maintains his admission of the charges and the facts upon which I had convicted him.     

5.Save for his plea of guilty, there is really little else in mitigation before me.

6.In the Secretary for Justice v Hii Siew Cheng & Anor. [2009] 1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in ketamine.  For trafficking 10 to 50 grammes of ketamine, a term of imprisonment between 4 to 6 years is called for.

7.In the instant case, the ketamine involved is 12.46 grammes. For this quantity, I consider a starting point at the lower end of the tariff guideline would be appropriate, and I take as a starting point 4 years and 3 months’ imprisonment, that is 51months.  The court has said time and again that there is a need for deterrence when dealing with offences like trafficking in a dangerous drug.

8.In the present case, the matters urged upon me cannot detract from the fact that a deterrent sentence is called for as our society needs to get the message that trafficking in a dangerous drug is a very serious offence. The only mitigation which is of use here is the Defendant’s plea, and for that, he will be given a one-third discount.

9.Therefore the starting point of 51 months will be reduced to a term of 34 months.  The Defendant is sentenced to 34 months’ imprisonment.