HKSAR v. So Man Wai

DCCC 1211/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1211 OF 2011

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Reasons for Sentence

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Charges and facts

1.The defendant admits possession of a small quantity of heroin (1^st charge) and trafficking in heroin and ketamine of a larger quantity (2^nd charge).

2.In the evening on 16 September 2011, while going out of his wooden hut in Yan Shun Lane, Kwun Tong, he was intercepted and searched by the police.  His wallet contained a packet of heroin (ie 0.17 g in mixture or 0.10 g in narcotics).  After arrest and caution, he said the drug was for his own consumption. 

3.From the attic of the wooden hut was found an eyeglass case, which contained 163 packets of heroin(ie 29.10 g in mixture or 16.42 g in narcotics) and 2 bags of ketamine (ie 26.27 g in powder or 20.97 g in narcotics).  After arrest and caution, he said the drugs were for his own consumption.  He bought them at $8,000.   

4.The estimated street value of all the drugs was $15,400.  He had $3,304.20 with him.    

Personal background and mitigation put forward

5.The defendant is now 38 years of age.  He was educated up to F. 2 level.  He was unemployed at the time of arrest.  He worked at times as a decoration worker.  His wife has separated from him.  His parents and 2 teenaged sons are partially dependent on his income.  He has a string of drug possession and other records but none for trafficking.   

Sentencing guidelines

6.In The Queen v Lau Tak Ming [1990] 2 HKLR 370, the Court of Appeal has laid down sentencing guidelines for trafficking in heroin.  For 10–50 g, the sentence shall be 5–8 years. 

7.In Secretary for Justice v Hii Siew Cheng [2007] 1 HKLRD 1, the Court of Appeal in has laid down sentencing guidelines for trafficking in ketamine.  For 10–50 g, the sentence shall be 4–6 years. 

Cocktail drugs

8.In HKSAR v Cheung Kwok Leung CACC 539/2002, Beeson J, who delivered the judgment of the Court of Appeal, outlined the proper approach as follows:

“36. The judge was correct in basing his sentence on the narcotic quantity of the most serious drug in the group of dangerous drugs, which was the Ice. However he should have sentenced on the total narcotic quantity for both charges.

37. We have considered the submissions that drug sentencing should be based on the weightiest constituent of any mixture. On the basis of current sentencing authorities such an approach is incorrect and could lead to absurd sentencing results. Requiring the sentencer to take the weightiest narcotic component and adjust the final sentence to take into account significant, but less weighty quantities, of more serious dangerous drugs making up the cocktail, would render nugatory the current sentencing guidelines. We reject this submission.

38. We acknowledge however that it can be a difficult and complex task to sentence offenders who traffick in, or possess quantities of, a number of different drugs. In a case such as the present one the starting point should be based on the total narcotic content of the most serious drug, or drugs where the tariff guidelines are co-equal.

39. The sentencer should examine the nature and quantity of other dangerous drugs in the combination and, where warranted, make an upward adjustment of, say, 4-18 months from the starting point. Whether any such adjustment is warranted will depend on whether other narcotic quantities are sizeable, whether the other drugs come within the same, or lesser tariffs, or whether any adjustment would be pointless, given the starting point adopted or the relevant range of sentence.

40. Where other drugs are in the group, but the quantities are very small, or where their addition to, or inclusion with, other items would not make any difference to the total sentence, the sentencer can, properly, ignore them when computing sentence.”

9.Such an approach has been widely adopted in subsequent cases (HKSAR v Yip Wai Yin CACC 80/2003, HKSAR v Cheung Kwok Fai CACC 157/2008).  

Sentencing this defendant

10.I take 12 months as the starting point in the 1^st charge.  Given the plea of guilty, I reduce it by one-third.  The sentence is 8 months in the absence of other mitigating factors.

11.I consider heroin and ketamine as equally serious drugs.  I take a starting point of 6 years in the 2^nd charge.  Given the plea of guilty, I reduce it by one-third.  The sentence is 4 years in the absence of other mitigating factors. 

12.Based on totality, the sentences shall be concurrent.