HKSAR v. Wan Kam Tim

DCCC818/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 818 OF 2011

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Reasons for Sentence

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1.The defendant has entered a plea of guilty to one charge of trafficking in a dangerous drug.

2.That occurred on 8 June in Tseung Kwan O, and the quantities of drugs were about 42.47 grammes of ketamine and 0.1 grammes of cocaine, 0.28 grammes of ketamine.

3.The facts of the case have been agreed by the defendant and I convicted him, and those facts show that on 8 June, police officers conducted an anti-dangerous drug operation at Room 708 of Ming Tat House, Tseung Kwan O.

4.The defendant was seen leaving the premises and was intercepted and searched.  Suspected drugs were found in his wallet and he said he had them for self-consumption.  Then, the defendant’s keys were used to enter the premises.  The defendant, in fact, indicated to the police there was ketamine in the drawer in his bedroom.

5.Now, 13 plastic bags were found containing dangerous drugs; two $20-dollar banknotes folded into a packet containing drugs; an electronic scale, four plastic bags containing a further 319 plastic bags, and a spoon.

6.The defendant admitted possession of all the drugs in the drawer.

7.Later, in a video interview, he said he purchased the ketamine and the packing equipment from a friend for $3,000.  He took 3 to 4 grammes of ketamine per day, but said he did not weigh it with the electronic scale.

8.The government chemist confirmed the quantities of drug - in Exhibit 1 there were 2 grammes of ketamine; Exhibit 2, 40.47 grammes, which is a total of 42.47 grammes of ketamine; and a further very small quantity in Exhibit 3 of a tenth of a gramme, 0.10 gramme of cocaine and 0.08 gramme of ketamine, a total of 0.15 gramme of that mix - and the defendant admitted that he possessed the Exhibits 1 to 4 which are the drugs, the banknotes and the paraphernalia:  the electronic scale, plastic bags for the purposes of trafficking.

9.The estimate of the value of the drug would be $5,523.

10.The tariff sentence for trafficking in ketamine puts this quantity of drug within the 10-to-50-gramme band, where sentences range between 4 to 6 years’ imprisonment.

11.As far as the defendant’s background is concerned, he is aged 25 years old.

12.He has a number of previous convictions; in fact, there are a total of seven recorded.  From 2005 he has obviously become involved in drug offences.  He was fined in 2005 and 2008, sentenced to a Drug Addiction Treatment Centre in 2008, and finally in 2090, sentenced to 2 years and 2 months for trafficking in a dangerous drug.

13.The defendant, in his antecedents, said that he was a dangerous-drug addict.  His antecedents show he had been a cleaner, printing labourer and worked as a cook, and completed secondary education at Form 1 level in Sai Kung.

14.He was last released from prison in September of 2010.

15.In mitigation a number of things were said on behalf of the defendant.

16.It is put forward that he is a drug addict, contends he consumes up to 3 to 4 grammes of ketamine per day and he also uses the drug to support his addiction by selling the drug.  Of that total of drug, he says - and it is said on his behalf in mitigation - about half was used for sale and half would be for self-consumption.

17.I was also told of his mother who works as a kitchen assistant and has an illness.

18.The defendant said that he had been able to cure his addiction while he was in prison on the last occasion, serving a sentence for trafficking in dangerous drugs, but he had fallen back into drug addiction after he left prison and started work again, that he had been injured whilst at work, had not been able to return to work quickly, had become depressed and had taken back to taking drugs, which really shows that he had not adequately and properly dealt with his drug addiction on the previous occasion.

19.The defendant has written a letter to the court, setting out his remorse and his determination to quit the drug.  Part of his concerns relate to his mother who suffers from Ménière’s disease and he would like to be able to care for her more, and the mother herself has written a letter about her son.

20.It is a very sad story, the defendant’s story, of a man who has effectively had his life ruined by his drug addiction.  He knows that he also faces a lengthy sentence for this matter and it is hoped he can rid his addiction while he is in prison.

21.This is a case where the defendant has submitted that quite a large portion of drugs was for his own consumption.  The actual quantity of drug itself, I think I estimated as being almost 42½ grammes.

22.If one takes the amount in terms of powder, it is almost 50 grammes, but one sentences on the basis of the actual drug quantity.  That, of course, still puts the amount of drug at the upper end of the band.

23.One would say that such a quantity of drug would be in the range of between at least 5½ to 6 years’ imprisonment, but I do have to at least look at the defendant’s contention that a portion of drug was for his own consumption, and there is guidance given on that in the case of HKSAR v Ice Wong(?).

24.One has to look at the surrounding circumstances in discerning whether to accept the contention, and even where it is accepted that a proportion or significant proportion is for the defendant’s own consumption, it is not necessary for the court to specify the relative amounts or proportions except in the very broadest terms, and the court can adjust sentence so as to reflect that not all the drugs were for trafficking.

25.In this case, the evidence points towards the fact that the drugs were for trafficking, and points towards it in a very substantial way, in that there were scales, four plastic bags containing 319 further plastic bags.  The drugs found include 13 plastic bags containing dangerous drugs, which suggest that the drugs are there for the purpose of being put into plastic bags and sold onto others.

26.Against that is the fact that the defendant is a drug addict, is a ketamine addict, and it would be quite likely that he would at least use some of this to feed his own habit, but that is where, to a certain extent, in these cases, the problem lies:  as to how much is used.

27.It is very difficult to accept broad suggestions that one consumes 3 or 4 grammes of substance a day, and to a certain extent, it depends on the nature of the market one is selling into.  If there is a high demand then presumably most of the drugs will get sold on quickly. If there is low demand, the defendant might help himself to more of the drug.

28.I consider there is some evidence in the defendant’s drug addiction to suggest he consumes some of the drug, but it is very difficult to make any quantitative determination in respect of this case as to what that would amount to.  I will simply say it will be a factor in my sentencing that the defendant is a drug addict.

29.What I shall do is move towards what I call the lower end of the band I was talking about earlier.

30.I also bear in mind the defendant has a recent previous conviction for the same offence.  It would be difficult to categorise him as being a recidivist on that basis.  However, it is clear that the last sentence the defendant had did not have a deterrent effect upon him, in that within a year he is back to committing the same offence again.

31.What I have decided to do in the defendant’s case is take a starting point for sentence at 5 years’ imprisonment, which is 60 months’ imprisonment.

32.He has pleaded guilty and he will get a one-third reduction, so the sentence will be one of 40 months’ imprisonment.