HKSAR v. Ko Keung

DCCC341/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 341 OF 2011

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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 dangerous drugs, namely, 11.9 grammes of a powder containing 9.72 grammes of the narcotic ketamine.

2.The facts are that on 22 January this year 2011, the police mounted an operation in Wang Lok House, Wang Tau Hom Estate, Kowloon.  At about 7.15 pm, police officers saw the defendant wandering around the lift lobby and behaving suspiciously.  The defendant was therefore stopped, searched, whereupon two transparent plastic bags were found in the pockets of his trousers.  One plastic bag contained white powder that, upon subsequent government chemist’s analysis, was found to contain 1.12 grammes of ketamine.  The second plastic bag contained the following three items:

(a) a further transparent plastic bag containing white powder that, upon subsequent analysis, was found to contain 8.6 grammes of ketamine;

(b) a plastic spoon; and

(c) 17 empty transparent plastic bags.

3.The defendant was arrested for trafficking in dangerous drugs, cautioned, following which he stated that he was in the process of delivering the smaller of the two amounts of dangerous drugs to a customer whereas the larger bag, the one that was found to contain 8.6 grammes of narcotic, would be sold to others upon request if such a request was received.  The defendant was then taken to a police station where a video record of interview was conducted, in which the defendant explained that he had purchased the dangerous drugs for $900, taken it home, used the spoon to decant a small portion for sale to someone in Wang Lok House who had telephoned him, requesting $100 worth of ketamine.  It was while he was waiting to make that sale that he was intercepted by the police.

4.The total amount of narcotic thus seized was 1.12 grammes in the smaller packet, 8.6 grammes in the larger packet, a total of 9.72 grammes.  The total estimated street value was $1,356.

Mitigation

5.The defendant is 55 years old with limited formal education, divorced but now living with a new partner.  He was up until a few weeks before the commission of this offence employed as a bartender. Indeed, I am told that it was the loss of his job as a bartender that led to his trafficking in ketamine in order that he could pay his bills and continue to fund his own drug habit.  I am told he is a regular consumer of ketamine. That habit of consuming ketamine leads his counsel, Mr Delaney, to submit that some of the drugs in the charge were for the defendant’s own consumption and that this ought to be reflected in the sentence.

6.Suffice it to say I have grave misgivings about accepting such mitigation and stated as much to Mr Delaney during his thorough submissions on behalf of the defendant. 

7.The defendant has a poor record, including four previous offences involving dangerous drugs: trafficking, 1985; manufacturing, 1990; possession, 1998; and possession, 2002.  Ironically, one of the reasons I do not accept the submission that some of these drugs were for the defendant’s own consumption is that it has been nine years since his last arrest for possession.  More significantly, however, the reasons for not accepting such mitigation are as follows:

(a) the circumstances where the drugs were found, namely, in the lobby of a residential building;

(b) the presence of other paraphernalia associated with the sale and distribution of dangerous drugs, namely, 17 small plastic packets and a spoon for subdividing the drug;

(c) the defendant’s apparent absence of financial means to pay for drugs other than by selling drugs to others; and

(d) the quantity of the dangerous drugs themselves.

8.I accept that the defendant has pleaded guilty and was co-operative upon being stopped, searched, arrested and interviewed. The defendant’s plea of guilty is his principal point in mitigation and really it is the only mitigating factor despite his counsel’s very best efforts.

Authorities

9.Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD sets out the tariff for trafficking in ketamine: 1 to 10 grammes, 2 to 4 years.  I am bound by that authority, but I do always bear in mind the Court of Appeal’s comments in HKSAR v Tang Tsz Yan CACC325/2010 where the court said that the guidelines for sentencing in cases of unlawful trafficking in dangerous drugs are not straitjackets. 

10.However, in the circumstances of this case, a departure from the guidelines cannot be justified.  Bearing in mind all of the circumstances and having taken into account the very forthright and sensibly advanced mitigation proffered on your behalf by your counsel but notwithstanding that mitigation, I take a starting point in this case of 4 years’ imprisonment.  That is 48 months.  I reduce that by one-third to reflect your plea of guilty and thus arrive at a sentence of 32 months or 2 years and 8 months.

11.Defendant, you are thus sentenced to a period of imprisonment of 2 years and 8 months.