CRIMINAL CASE NO. 370 OF 2011
COURT: The defendant, Poon Kam-wing, was charged with two counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.
The defendant pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
The Admitted Facts disclosed that a team of police officers were conducting an operation when the defendant was intercepted. The defendant was standing with his girlfriend. Upon search, two red packets containing what was later confirmed to be 46.66 grammes of a solid containing 40.52 grammes of cocaine were found in the trousers’ pocket of the defendant.
Under caution, the defendant admitted the dangerous drugs were his and had nothing to do with his girlfriend. The defendant was then taken to Room 1313 of Block 6, Kwai Shing Estate. The police gained entry by using a key found on the defendant’s girlfriend.
A search of the premises resulted in the finding of nine plastic bags and a plastic bottle containing what were later confirmed to be (1) 2.49 grammes of a solid and powder containing 2.13 grammes of cocaine; (2) 53.14 grammes of a solid containing 47.5 grammes of cocaine hydrochloride; (3) 7.59 grammes of a powder containing 5.51 grammes of ketamine.
Apart from the dangerous drugs, police also found plastic bags containing caffeine, sodium bicarbonate and calcium sulphate. There were also electronic scales, a spoon, a screwdriver, a lighter, and 154 empty resealable plastic bags.
Traces of cocaine were later confirmed to be on the scale and on the spoon. Upon arrest, the defendant admitted the dangerous drugs inside the flat were his and had nothing to do with his girlfriend.
When the police searched the kitchen, they found a Chinese wok filled with water, a beaker with chopsticks and a milk bottle containing brownish liquid. Upon further arrest and caution, the defendant admitted the dangerous drugs he bought were raw cocaine and he needed to cook them before sale.
In a subsequent video-recorded interview, the defendant admitted he was taking the cocaine found on his person to Tsim Sha Tsui to sell at the price of $12,500 per packet. He also said he bought the cocaine at a price of $46,000 and the ketamine for $800. He had brought the cocaine home and cooked it using the equipment found at the scene. The estimated street value of all the dangerous drugs seized was HK$114,349.
The defendant is a 24-year-old, single young man, although according to his letter to me, he has a fiancée. I take it as the girl who was found together with the defendant when he was intercepted.
The defendant is not a first offender. The defendant has four previous convictions of possession of dangerous drugs and one for possession of an identity card belonging to another. He had been given Community Service Orders, Probation Orders and also sent to a Drug Addiction Treatment Centre before. This is the first time the defendant is facing a gaol sentence.
In mitigation, Mr Davies stressed that the defendant is not a violent person and he has shouldered the full responsibility by immediately making admissions to the police and pleaded guilty at the earliest available opportunity. Mr Davies told me that the defendant was aware of the guidelines and he knows he has to go to gaol for a long time. Nevertheless, Mr Davies asks me to adopt a lower starting point so that the defendant can be released back into society earlier, as he is still a young man. I understand that of the 7.59 grammes of ketamine found inside the premises, some were intended for the defendant’s own consumption.
Mr Davies informed me that the defendant has to consult a doctor monthly for his pulmonary tuberculosis condition and that the defendant’s father has suffered from a stroke and needed the assistance of the defendant. The defendant and his parents have written to me. Basically, the defendant expressed his remorse and his determination to start afresh by taking up courses to enrich himself while he is in custody. The defendant’s mother felt that she did not supervise the defendant properly ever since the defendant’s father suffered a stroke and needed more care. The parents asked for leniency.
Trafficking in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of $5 million and to imprisonment for life. First of all, although the defendant was convicted of two counts of trafficking in a dangerous drug, on the facts of this case, it would be proper for me to deal with all the drugs together and pass a concurrent sentence.
This case involves the trafficking in two kinds of drugs, cocaine and ketamine. The Court of Appeal has set down guidelines for the trafficking of cocaine and for the trafficking of ketamine. For the purpose of sentencing, I will treat cocaine and cocaine hydrochloride as the same.
The total quantity is 90.15 grammes which fell into the category of 50 to 200 grammes, with a starting point of 8 to 12 years. The authorities are Pedro Nel Rojas and Lau Tak Ming. The ketamine involved here is 7.59 grammes. It fell into the over 1 gramme to 10 gramme category, starting point 2 to 4 years. The authority is Hii Siew Cheng.
As the ketamine is in a relatively small quantity and less serious than cocaine, a combined approach in arriving at the correct starting point would be proper. Furthermore, in view of the defendant’s previous convictions of possession of dangerous drugs, I accept that part of the ketamine was for his own consumption.
When I consider the correct starting point, I take into account all the circumstances of the case, including the aggravating factor of “altering” cocaine hydrochloride into crack cocaine and the defendant’s own background. I am of the view that a starting point of 11 years is appropriate.
The defendant is entitled to a full one-third discount for his early plea. Apart from his plea, I do not see any other ground to further reduce his sentence. Neither his nor his father’s medical condition amounts to special or humanitarian grounds to reduce the sentence.
For the 1st charge, the defendant is sentenced to 7 years and 4 months’ imprisonment, the 2nd charge, also 7 years and 4 months’ imprisonment, both sentences to run concurrently, making a total of 7 years and 4 months.
Please refer to CACC505/2011 for the relevant appeal(s) to the Court of Appeal.