HKSAR v. Li Ka Hung
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DCCC290/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO.290 OF 2011 ---------------------------
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Reasons for sentence 1.The defendant pleaded guilty to 2 charges of trafficking in dangerous drugs, admitted to the summary of facts and was duly convicted. Charge 1 and 2 involved the trafficking of 0.92g and 7.31g of ketamine (8.23g in total) respectively. Facts Charge 1 2.On 10th December 2010, at 12:30am, undercover Police officer came to know the defendant at an upstairs bar in Mongkok. The defendant told the officer that he had ‘K chai’ for sale and they exchanged telephone numbers. The defendant left the bar afterwards. 3.About 17 minutes later, the defendant called the officer and asked to meet at the ground floor of the building where the bar was located. 3 minutes later they met. The defendant brought the Police officer to a sitting area near the junction of Dundas street and Nathan Road and offered to sell “half a bone” of “K Chai” at $350 to the Police officer. The officer agreed to the sale and the defendant asked him to wait. The defendant then left the area. 4.At around 1:42am, slightly less than 1 hour later, the defendant returned to the sitting area and handed a packet of powder to the officer who then paid $350 to the defendant. The defendant told the officer to call him if he needed more drugs and then left the area. The packet was later examined by a government chemist and the contents was confirmed to contain 0.92g of ketamine. Charge 2 5.42 days later, at around 7:45pm on 21 January 2011, the same Police officer received a phone call from the defendant offering more “K” for sale. The defendant offered to sell “half a unit” to the officer at $1,000. They agreed to meet up later for the transaction. 6.5 hours and 45 minutes later, at around 1:31am on 22 January 2011, the defendant met the Police officer outside the exit of the Hong Kong Park near Supreme Court Road. The defendant asked the Police officer to pay first and so the officer handed $1,000 cash to the defendant, who then handed a packet to the officer. The operation turned overt at this moment and the undercover officer revealed his Police identity to the defendant. The defendant was then arrested. 7.The packet was examined and found to contained 7.31g of ketamine. 8.In 2 subsequent cautioned record of interview, the defendant admitted that he had committed the 2 offences. The defendant said that he had purchased the Ketamine from a male named “Ah Dick” in Sham Shui Po for $300 and $900 respectively on separate occasions and that he had sold them to the undercover Police officer at a slightly higher price so as to earn some money. Previous conviction 9.The defendant has one previous conviction for possession of dangerous drugs when he was sentenced at the Kowloon City Magistracy to 6 weeks’ imprisonment suspended for 12 months on 5th May 2010. The defendant was therefore in breach of the suspended sentence when he committed the 2 offences. Counsel for the defendant pointed out that the first breach happened 7 months after its imposition, which was just 5 months away from the end of the suspension period. Mitigation 10.The defendant is 24, single, born in Hong Kong. He tried to work in different capacities and prior to his arrest he was working as a waiter in 2010. Some time in 2009 and early 2010 he mixed with some dubious peers and under their influence he started dabbling in dangerous drugs, which led to his first conviction in 2010. The defendant got quite “attached” to the dangerous drugs and started selling dangerous drugs as well to feed his own habit. He lost his employment as a result of the impact of the dangerous drugs, which also affected his relationship with the family who had tried to help the defendant get rid of the habit. 11.The only substantial mitigation comes from the defendant’s plea of guilty to both offences. It is not done at the first opportunity but the defendant had nevertheless saved court time and resources. The defendant says that he is truly remorseful, he has realized how the drugs had been ruining his life. He has been in custody since January, some 7 months since the arrest for the 2nd offence. He says that being in custody has made him reflect deeply on his problems and he has realized how foolish he has been. To that end, the defendant has written a letter expressing his remorse. Letters from the defendant’s parents were also submitted. 12.The defendant has tried to improve himself and hopes that upon his release he can integrate into society and find a decent job. 13.The dangerous drugs for both offences together is 8.23g. Counsel submitted that although they are separate offences, they have a close nexus and should be dealt with together. 14.As for the suspended sentence, counsel submitted that it is for the court’s discretion as to whether to activate it. Counsel reminded the court that the defendant had complied with the suspension for 7 months. Sentencing guidelines 15.As Mr. Mughal pointed out, the applicable 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 where the Court of Appeal indicated that the sentence after trial for trafficking between 1 to 10g of ketamine is that of 2 to 4 years’ imprisonment. Anything under 1g is at the discretion of the sentencer. Sentence 16.Mr. Mughal submitted that the defendant’s age can be a mitigating factor. While it is true that young age can be a mitigating factor in certain cases, in cases concerning serious charges such as trafficking in dangerous drugs, age will only be a mitigating factor if the defendant falls within the “extreme youth” category, which is usually, say around 14 years old. The defendant is 24, he is not within this category and his age itself is not a mitigating factor in offences as serious as the ones that he has pleaded guilty to. 17.The only mitigating factor is therefore the defendant’s guilty plea. Although the defendant did not plead guilty at the earliest opportunity, I will nevertheless grant him the full one third discount. 18.I do not see any mitigating factor to allow me to depart from the sentencing guidelines. Charge 1 19.In relation to charge 1, I will adopt a starting point of 21 months’ imprisonment, reducing it by one third in recognition of the defendant’s plea of guilty and sentence him to 14 months’ imprisonment. Charge 2 20.In relation to charge 2, I will adopt a starting point of 42 months’ imprisonment, reducing it by one third in recognition of the defendant’s guilty plea and sentence him to 28 months’ imprisonment. Totality 21.Bearing in mind the close nexus of the 2 offences, I will order that 2 months of charge 1 to be served consecutively to the sentence of charge 2, the defendant is therefore sentenced to a total of 30 month’s imprisonment for the 2 charges. Suspended sentence 22.The defendant was given a chance at the magistracy. He ignored the warning of the magistrate and chose to traffic in dangerous drugs, not once, but twice while he was under a suspended sentence. I order that the suspended sentence be activated. I order that 5 weeks of the suspended sentence be served consecutively to the defendant’s sentence in the present case since the defendant managed not to commit any offence for the first 7 months of the suspension period. 23.In other words, the defendant is sentenced to a total of 30 months and 5 weeks’ imprisonment.
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