HKSAR v. Chan Wing Man and Another

DCCC774/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 774 OF 2011

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Reasons for Sentence

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1.The 1st and 2nd defendant have pleaded guilty to a joint charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. Particulars are that, on 24 May this year, the defendants trafficked 222.01 grammes of a powder containing 70.79 grammes of ketamine.

2.The prosecution’s case is very straightforward. On 24 May this year the police mounted an anti-drugs operation on the 23rd Floor, Block 8, Fullview Garden, Siu Sai Wan.  They found, near a fire hose cabinet, a bag of white powder.  They suspected it was dangerous drugs.  They waited.  Not long after, they saw the 1st defendant appear, approach the fire hose cabinet and was then intercepted by the police.  The bag that had been near the fire hose cabinet was found in the 1st defendant’s handbag. Under caution she said that it was the 2nd defendant who had told her to collect the ketamine.

3.The 2nd defendant appeared within 10 minutes. He was also intercepted by the police.  He had come looking for the 1st defendant.  He was searched, and electronic scales with traces of ketamine on it, a resealable plastic bag containing 48 empty resealable plastic bags and a spoon wrapped in a piece of tissue was found in a bag carried by the 2nd defendant.  Under caution he explained that the 1st defendant had asked for the electronic scales and the bags to pack the ketamine. 

4.The facts indicate that the street value of the ketamine was estimated at $24,642.  I can say from the outset that the best mitigation is the defendant’s pleas of guilty. 

5.The 1st and 2nd defendant are 22 and 21 years old respectively.  Both previously had clear records.  All are very aware that for this offence of trafficking ketamine there are guidelines that now apply according to the authority of The Secretary for Justice and Hii Siew Cheng CAAR7/2006, where it finds that trafficking between 50 and 300 grammes of ketamine should and would attract starting point sentences of between 6 to 9 years.

6.Because of the defendant’s clear records I called for background report.  I have them at hand today and will not repeat the details.  They are agreed and accurate.

7.The 1st defendant went wild at a young age, became involved with drugs and undesirable peers.  She tells the social welfare officer that she has recently become heavily involved with ketamine on a daily basis.  She was, until her arrest, working in a shop as a sales lady, earning $8,000 a month.  And just prior to the offence she had resigned from her job and was unemployed.

8.The 2nd defendant and the 1st defendant are friends.  The 2nd defendant, like the 1st defendant, has had previous employment despite not obtaining any good results at school, and until his arrest he was working with his aunt.  However, like the 1st defendant he dabbled in dangerous drugs through undesirable peers.  He also got himself into financial trouble by spending on a credit card and accumulating debts.  He readily admits to the probation officer that with a view of gaining some easy money because of his financial position he got himself involved in drug trafficking business through friends.  He helped package drugs and would receive a financial reward.  Unbeknownst to him, his father had actually cleared his credit card debt and loans from a financial company.

9.One other thing the defendants have in common is strong family support.  They are all here today in court, and obviously very disappointed, concerned, I am sure distraught, but will not give up on the defendants.  For that you should be grateful.

10.The 1st defendant has said in the report and in her instructions that she was involved with this quantity of drugs and was going to share it with the 2nd defendant, with a large quantity or a significant quantity being for her own self-consumption.  The 2nd defendant’s explanation is that he was asked by the 2nd defendant to help pack the dangerous drugs, for which he would receive a reward. 

11.When the defendants were arrested the 1st defendant gave a non-prejudicial statement to the police and indicated her willingness to give evidence against the 2nd defendant, but before the 2nd defendant had knowledge of this non-prejudicial statement and the 1st defendant’s willingness he had indicated he would plead guilty.  This non-prejudicial statement and her willingness was not instrumental in his plea. 

12.Mr Acton-Bond has referred me to authorities where  defendants show willingness to assist the prosecution and asks for a discount to reflect her willingness to give evidence if she had been required to do so.

13.I have heard full mitigation today.  I have also read and heard letters from the defendants’ friends, social worker, family, and the defendants themselves.  All ask for leniency.  The defendants express remorse.  Their family shows support.  And, lastly, the defendants promise to better themselves despite this offence and pending prison term.  Both also promise their family they will turn over a new leaf when they have served their sentence and will prove it.  And I hope these are not empty promises from the defendants.

14.I find both defendants, on their mitigation, as culpable as each other, and I do not distinguish their roles.  The 1st defendant has submitted that part of the dangerous drugs was for her own consumption and should be reflected in the starting point.  The 2nd defendant does not make the same submission.  I have been referred to the authority of HKSAR v Wong Suet Han 2002 1 HKLRD 69.  I have considered that authority, the mitigation, the background report and the facts of the case before this court, and I ultimately do not make a finding that a significant portion was intended for self-consumption.  The quantity is substantial and the value is high.  The drugs were found in a public area.  The drugs were found in one big packet, but there is evidence that they were to be separated and packed into smaller packets.  And there is certainly paraphernalia found on the 2nd defendant that would achieve that purpose.

15.Whether the 1st defendant is a heavy ketamine user, the only evidence comes from her.  There is no physical sign such as admission into hospital or visits to the doctors whilst in remand that would indicate physical signs of heavy ketamine abuse.  She certainly did not tell the police that part of this was for her own consumption.  She gave instructions to Mr Acton Bond that she had $9,000 saved up to pay for her portion, but there are no further details as to how she was able to save this money and how it would go towards the purchase.  At that time she was unemployed, although she had not been unemployed for long.  Prior to that she was earning $8,000 a month, of which she gave 2,000 to her family.  She says to the probation officer she had a drug habit that cost her $600 a day.  I do find it hard to accept that she would have saved up $9,000 to purchase the drugs for her own consumption.  I am not convinced that the significant part of the dangerous drugs was for her own consumption and I would not adjust the starting point to reflect part of the drugs is for self-consumption.

16.Nor will I lower the starting point for the 1st defendant because she has given the police a non-prejudicial statement.  I accept that she was willing, but very fairly it was pointed out that the 2nd defendant’s plea was not influenced by the 1st defendant’s non-prejudicial statement.  I’d find it a disparity if I were to give the 1st defendant a lower sentence than the 2nd defendant because of her giving a non-prejudicial statement.  If the 2nd defendant had known of the non-prejudicial statement and I could say it played a factor in his decision to plead guilty, I would find otherwise.  But that is not the case here. 

17.As I have said, the best mitigation for both defendants today is their pleas.  I will also take into account their previous clear records.  That is an important factor.  Having read the letters and seen the background reports I feel that their remorse is genuine.

18.Sentences for offences of this nature are heavy for a reason, are severe for a reason.  Drugs are a bane in our lives and are, therefore, dealt with severely.

19.In coming to a starting point I have taken into account everything said and written on your behalf.  I would have taken a 6 year starting point, but having heard full mitigation and taken into account your previous clear records I will take a starting point of 5 years and 9 months.  Both defendants are entitled to a discount of one-third for their pleas.  After this discount each defendant is sentenced to a term of 3 years and 10 months.