HKSAR v. Ho Chun Faat

DCCC352/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

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Reasons for Sentence

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1.The defendant, Ho Chun-faat, pleaded guilty before me to one count of trafficking. The drugs involved are 45.31 grammes of ketamine.

2.The facts are on the night in question, the defendant was seen by plainclothes officers getting out of a car and walking towards the rear of Wong Nai Tun Tsuen village office.  Police officer called for assistance.  As soon as a police vehicle appeared, the private car was immediately driven away.  Officers followed the defendant to the rear of the village office and saw him squatting down on the ground.  The officer approached him for enquiry.  The defendant immediately ran but was intercepted.

3.Upon checking at the location where defendant was seen squatted, the police found two red recycling bags and one yellow plastic shopping bag underneath a stone slab.  The recycling bags contained six “GLAD” plastic bags.  These bags were found to contain traces of ketamine.  Police also found from the bag carried by the defendant at the time cash of about $40,000 and plastic bags containing the drugs as particularised in the charge.

4.He was arrested and cautioned.  The defendant said the ketamine in his bag belonged to a person called Ah Wah and not his. 

5.Defendant has two previous convictions of resisting police officers.  He is aged 27, single.  The court is told that he has planned to marry his girlfriend at the end of this year.  He has a job as a transportation worker.  He is not from a well‑off family.  He has to struggle to make ends meet.  He contributes about $2,000 to his parents.  As his girlfriend has been out of work for two years, she relies on the defendant’s support.  He is the youngest in the family.  He has two elder brothers.

6.The court is told that the defendant actively helped in volunteer work in the district where he lived, such as helping the elderly and the young children in carrying out their activities.  His parents, girlfriend, cousins, all present in court to show concern and support for him today.  The letters from his parents, girlfriend and the District Council members were handed up for court’s consideration.  They all say the defendant is a good person by nature.  They were shocked and disbelieved that the defendant had committed the present offence.

7.It is also submitted by the defence that the court should depart from the sentencing guidelines and take a lower starting point in the present case mainly on two grounds: one, part of the drugs in question was for the defendant’s own consumption.  In support of that, the defence rely on a High Court case, Chau Kai Ming HCCC7 of 2010.  The second ground is the guidelines are not meant for a straitjacket and a departure in the present case is justified.  The defence submitted a District Court sentencing case DCCC566 of 2010. 

8.Trafficking in dangerous drug is a very serious offence.  I think you do not need me to tell you the harm that drug could bring to the society, and you are the one who directly brings about the harm to the society. Offender like you will be dealt with by court severely.

9.Court of Appeal has on many occasions said that person of young age, of clear record, that does not carry much weight in mitigation.  In fact, there are sentencing guidelines for this type of offence.  For trafficking 10 to 50 grammes of ketamine, a term of imprisonment of between 4 to 6 years is called for while 50 to 300 grammes, a term of imprisonment of 6 to 9 years is called for.

10.In the case of Tong Fuk Sing CACC216 of 99, the Court of Appeal has this to say:

“Where Court of Appeal has laid down guidance for sentence, it is not sufficient for sentencing judge merely to pay lip service to it before departing from it - sound reasons for such departure should be given.”

11.Firstly, I want to deal with the first ground, the claim that part of the drugs for your own consumption.  In the High Court case submitted by the defence, in that case, the High Court judge accepted part of the drugs for the defendant’s own consumption.  He also pointed out that indeed the defendant indicated to the police under caution that the drugs in the premises for his own consumption.

12.Returning to the present case, on the evidence before the court, there is simply nothing to suggest the defendant had the drugs or part of it for his own consumption.  He has no previous possession-of-dangerous-drugs conviction.  The admitted fact indicated at the time he told the police about the drugs, it was not his, it was somebody else. Nothing along the line his your own consumption.

13.In the antecedent statement, it says the accused, i.e. the defendant, is dangerous drug addict (ketamine).  He is healthy.  The source is from the defendant, but the comment "unverified” is put down there.  

14.I have indicated to defence counsel at this stage the court is not prepared to accept the claim.  An opportunity has been offered to the defence to call further evidence to support such claim.  The defence indicated to court in no uncertain term that they are not going to do it.  So what is left is a bare assertion from the defendant through his counsel.  In the circumstances, I am not prepared to accept the claim and will proceed to sentence the defendant on the basis of the amount of drugs he admitted trafficking in the charge, i.e. 45.31 grammes of ketamine.

15.On the second ground about a departure from the usual sentencing guideline, I have gone through the District Court case submitted by the defence.  In fact, it is not like what the defence has suggested that the sentencing judge in that case has departed from the usual guidelines.  In my view, she did not. 

16.The Court of Appeal has said on other occasion that when the appellate court set down the guidelines, it is not a strict mathematical method to work out the starting point.  For example, 10 to 50 grammes call for 4 to 6 years. It is not to divide the range of years by the amount of drugs to work out the starting point.  10 grammes, 13 grammes may call for a 4-year starting point. It is a range, not a particular point to look at to find out the starting point from a particular bracket. 

17.Coming back to your mitigation, apart from your guilty plea, I see nothing of any substance.  For the amount of drugs you trafficked, I take 5 and a half years as starting point, reduced by one-third to reflect your plea to 44 months’ imprisonment.  There being no reasons for further reduction, you are sentenced to 44 months’ imprisonment.