HKSAR v. Pang Fai Wah

DCCC464/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.464 OF 2011

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Reasons for Sentence

1.The defendant pleaded guilty to 1 charge of Trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. Particulars of the charge are that the defendant on 24^th February 2011 at Room 1165, 11^th Floor, Block 10, Shek Lei (II) Estate, Kwai Chung, New Territories unlawfully trafficked in a dangerous drug, namely 120.40g of a powder containing 71.41g of Ketamine.

Facts

2.At about 3:25pm on 24^th February, Police entered the defendant’s residence (address as stated in the charge) under a search warrant. The defendant was not home at the time of entry. Police found 36 re-sealable plastic bags each containing some powder underneath the kitchen stove. An electronic scale and large amount of empty re-sealable plastic bags were found on a shelf in the living room.

3.The defendant was subsequently located and arrested on the same day. He had just $10.10 on him. Under caution, the defendant admitted that the 36 bags of powder found in his home contained “K Chai”. The defendant claimed that he intended to sell them in order to earn money to support his family.

4.In his cautioned video recorded interview, the defendant again admitted that the powder seized form his home was ketamine. He claimed that he bought the drugs 2 days earlier for HK$6,500 with intention to reselling them in Tsuen Wan. We heard later in mitigation that he intended to sell them to his friends. The defendant further admitted to using the electronic scale to weigh the ketamine and the empty re-sealable plastic bags to pack the drug. There is no evidence that the defendant himself is a drug addict.

5.Government chemist confirmed that a total of 120.4g of a powder containing 71.41g of ketamine was seized from the defendant’s address. The estimated street value of the drugs is approximately HK$14,086.80. It would therefore appear that the defendant bought the drugs at a lower than street value price.

Previous Convictions

6.The defendant has 2 previous convictions. Both were for assault occasioning actual bodily harm. He was sentenced to 12 months’ probation and then the Rehabilitation Centre in 2008 and 2009 respectively.

Mitigation

7.The defendant is 19 years old. He is educated up to F.3 level in Hong Kong. The defendant has a new born son with his girlfriend. The defendant is the sole financial support of his family. He has no triad background. The defendant’s father is 42, mother 41 and they live near the defendant. Both families live in public housing. The defendant’s father used to work as a construction site worker, but since suffering back and leg work injuries a couple of years ago he had had difficulties finding work. He also suffers from thyroid glands illness and has been receiving medical attention. His income is therefore unsteady. The defendant’s mother is a public relationship personnel in a restaurant. The defendant’s elder sister is a year 2 student in Shu Yan University while his younger sister is 13 years old and is studying in Form 2. Both are living with the defendant and tuition fees have to be paid for both of them. I was told who actually paid the tuition fees. The defendant’s girlfriend is now 17 and is unemployed. As mentioned above, she gave birth to the defendant’s baby boy recently this year. The $700-$800 rental for the pubic housing that he is living is sometimes paid by the defendant, sometimes by his father.

8.The defendant left school in mid-2008 and worked as a waiter in a restaurant for 4 months, with monthly wage of around $7,000. From December 2009 to February 2010, the defendant worked as a waiter in another restaurant, earning $7,500 per month. From February to August 2010, for 7 months, the defendant worked at a waiter in another restaurant in Lai Chee Kok earning $8,000 per month. From December 2010 to January 2011, the defendant worked as a casual construction site worker in Mei Foo and Fotan, earning around $10,000 per month.

9.The defendant has a pending court case on 22^nd July 2011 in relation to wounding. The defendant will be pleading not guilty in that case. I find that this has no bearing on our present sentence.

10.In relation to the present case, the defendant placed the drugs in his home. He bought the drugs for $6,500 2 days before his arrest. The intention was to earn some profits out of the drugs by selling to his friends in the Tsuen Wan district. After the drugs were found and Police contacted the defendant, he confessed at the first instance without resistance and chose to plead guilty at the earliest opportunity, saving the court’s time.

11.The defendant is the sole breadwinner of the family, father of a baby boy, he is very remorseful. Letters of mitigation written by the defendant, his girlfriend, sisters, mother and his social worker were submitted.

Sentencing Guidelines and cases

12.Sentencing guidelines for trafficking in ketamine is found in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006

“95. We indicate the following tariffs for sentence after trial for traffickers in ketamine and ecstasy:

(4) 50 to 300 grammes – 6 to 9 years’ imprisonment;”

13.Solicitor for the defendant referred to the case of Wong Chun Cheong v HKSAR, FACC No.9 of 2000 which was referred to the District Court case of HKSAR v Mak Yu Pong, DCCC 940/2008 to support his submission that a training centre would be appropriate for the defendant in our present case.

14.I find that the situation in our present case is different and distinguishable. The main distinguishing factor being that the ketamine involved in our case is more than double the amount in the Mak Yu Pong case. Furthermore, principles 2, 3, 4 and 5 in Wong Chun Cheong v HKSAR, if properly applied, would mean that a training order would be inappropriate. The defendant bought a large quantity of ketamine to sell to his friends in his own neighbor, the interest of the community requires that a deterrent sentence be imposed. Otherwise other young people in the community will think that selling drugs for a quick profit is a viable alternative to hard work.

15.Since the interest of the community requires a punitive and deterring approach, principle 3 no longer applies.

16.Clearly, trafficking in 71.41g of ketamine is too serious an offence to be dealt with by way of a training centre order. Even if the defendant could have been regarded as a suitable candidate, I reject this option based on the seriousness of the offence.

17.Principle 5 applies on the premise that the offence committed is a minor offence. Trafficking in 71.41g of ketamine is not a minor offence by any stretch of the imagination.

Sentence

18.The defendant is 19 years old. The defendant is a relatively young man. Yet, for the purpose of sentencing in a trafficking in dangerous drugs case, the defendant does not fall into the extreme youth category and as such his age itself would not per se be a mitigating factor. Usually in cases involving young traffickers, we hear stories of how the young person was enticed by someone paying him a small amount of money to do the trafficking for them, exploiting the young person’s greed and vulnerability. It is not the situation in our present case. The defendant decided that he needed to make some quick money and he went out to buy the drugs himself for a substantial amount of money so that he can re-package them and then resell them to his friends in the Tsuen Wan neighborhood. The defendant was not being exploited in any way. He acted on his own initiatives and enterprising nature.

19.Having heard his mitigation, I find that there is nothing that would allow me to depart from the sentencing guidelines. For reasons already given above, I do not find the cases of Wong Chun Cheong and Mak Yu Pong applicable to our present case. I will however give the defendant some discount for the time and money he had saved by rendering full assistance to the Police in the investigation of the crime and choosing to plead guilty at the earliest opportunity.

20.Based on the 71.41g of ketamine involved, I will adopt a starting point of 75 months’ imprisonment, reducing it by 3 months to 72 months’ imprisonment in reflection of the time saved. I will then grant the defendant the full one-third discount in recognition of his guilty plea and sentence him to 48 months’ imprisonment.