HKSAR v. So Chi Shing

DCCC 1386/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1386 OF 2010

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 74.97 grammes of a powder containing 35.93 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2.In summary at about 16.30 hours on the 2nd November last year the police intercepted the defendant when he left Room A, Rooftop, Cheoy Lee Building in Kwun Tong.  A black plastic bag containing six transparent plastic bags containing the ketamine was found inside the defendant’s jeans.  Under caution the defendant claimed some of the ketamine was for his own consumption and some was for sale.  In a subsequent video interview the defendant said he bought the ketamine for $3,000 intending to sell the drugs to his friends at HK$1,000 per packet.

3.In passing sentence I have carefully considered everything said on behalf of the defendant by Miss Tang, together with the letters submitted by the defendant and his social worker.   I take into account the young age of the defendant and that he has no previous criminal record.

4.The defendant had just turned 17 at the time of the offence.  Section 109A of the Criminal Procedure Ordinance, Chapter 221 provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  This provision however does not apply to an excepted offence.  I nevertheless called for a Drug Addiction Treatment Centre report to provide me with background information on the defendant and to see whether he was a drug addict, warning the defendant the court was not considering a sentence of drug treatment.     

5.The report reveals the defendant having no motivation for studying frequented amusement games centres and public parks where he associated with triad-related peers. Under peer influence the defendant was tempted into taking ice, ketamine and cocaine.  After leaving school the defendant spent most of his time with his triad peers instead of working.  To support his lifestyle the defendant engaged in trafficking drugs to earn easy money.   

6.In the Secretary for Justice v HII Siew-cheng [2008] 3 HKC 325 the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years imprisonment.  Notwithstanding the defendant’s young age and clear record I am satisfied there are no exceptional circumstances warranting departure from the guidelines.         I am satisfied the proper starting point after trial for 35.93 grammes of ketamine is 5 years and 3 months imprisonment. 

7.The defendant says one of the six packets was for his own consumption and would last him for one month.  The DATC report reveals that the defendant first started abusing ice in October 2008, ketamine in November 2008 and cocaine in October 2010, and that he last took drugs earlier this month.  Taking into account the defendant told the police on arrest some of the drugs were for his own consumption and that he is found by the Medical Officer of Pik Uk Correctional Institution to be drug dependant I am prepared to accept that some of the ketamine was for the defendant’s own consumption.

8.In deciding how much weight should be attached to the fact some of the ketamine was for the defendant’s own consumption I have considered the decision in HKSAR v. WONG Suet-hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34.  Looking at the photographs of the packaging the six bags seem to be more or less equal weight, which would mean each bag contains approximately 6 grammes of ketamine.  In the circumstances I am satisfied a reduction of 3 months imprisonment to one of 5 years is appropriate.

9.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 3 years and 4 months imprisonment.