HKSAR v. Wong Wai Keung and Another

DCCC 1249 & 1253/2011
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1249 & 1253 OF 2011

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REASONS FOR SENTENCE

1.The defendants (D1 and D2 on the consolidated indictmentand so termed throughout) are convicted on the charges that each face, charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, and possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134. At the outset, D1 has admitted a total of four counts, namely 3 counts of trafficking in a dangerous drug and one count of possession of a dangerous drug whilst D2 has been convicted after trial on one count, namely count 1, of trafficking in a dangerous drug, wherein he was jointly charged with D1.

2.Full particulars of the offences are set out in my verdict delivered on 20 February 2012 in respect of D2.  D1 is sentenced on the basis of the facts admitted by him whilst D2 is sentenced on the basis of the facts found by this court. Sentence of D1 was adjourned until the conclusion of the trial of D2 as D1 was to be called as a defence witness for D2.

3.Between April and August 2011, the police conducted an anti-drugs undercover operation code named ‘Soundbreaker’. As part of the operation, a police decoy, PC 5205, acted as a drug abuser and contacted different drug traffickers and purchased dangerous drugs from them.

4.The police decoy successfully purchased dangerous drugs as follows:

(a) Charge 1 from D1 & D2 jointly on 14 July 2011 – 27.02 grammes of a powder containing 14.43 grammes of ketamine;

(b) Charge 2 from D1 on 19 July 2011 – 25.51 grammes of a powder containing 17.28 grammes of ketamine;

(c) Charge 3 from D1 on 25 July 2011 – 25.77 grammes of a powder containing 15.34 grammes of ketamine.

5.Before the police operation turned overt, the Customs & Excise Department which had also had D1 under surveillance, took action and raided his residence on 11 August 2011, namely Charge 4 of the indictment, the offence of possession of a dangerous drug.  D1 was found in his bedroom, and 4 plastic bags containing 52.42 grammes of a powder containing 28.54 grammes of ketamine were found in his bedroom, as well as some re-sealable plastic bags, an electronic scale and a spoon.  He admitted under caution at the scene that the drugs found in his bedroom were ketamine for his own consumption.

6.In the Secretary for Justice v Hii Siew-cheng [2008] 3 HKC 325 the Court of Appeal laid down guidelines for trafficking in ketamine.  For trafficking 10 to 50 grammes of ketamine, a term of imprisonment of between 4 to 6 years is called for.

7.After hearing counsel in mitigation on behalf of both defendants, I adjourned sentencing, and called for background reports in respect of the defendants, which are now before me.  In respect of D1, although he has also been convicted on one count of possession of a dangerous drug, I did not see the need to call for a Drug Addiction Treatment Centre Report as in my view the likely sentence would be an immediate custodial one likely to exceed 9 months’ imprisonment as he had also been convicted of three counts of trafficking in a dangerous drug (section 54A(1A)(a) of the Dangerous Drugs Ordinance, Cap. 134 refers).

8.D1 is aged 18 years.  Section 109A of the Criminal Procedure Ordinance, Cap. 221, provides that no court shall sentence a person of or over the age of 16 years and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  This provision, however, does not apply to offences of trafficking in dangerous drugs, which are excepted offences.

9.I have borne in mind all that has been urged upon me on behalf of the defendantsas well as the contents of the background reports in respect of each defendant as well as the letters written by D1 and his mother.  I take into account too that D2 has a clear record.

10.I do bear in mind the classical principles of sentencing and balance amongst the need for rehabilitation, retribution, deterrence and prevention.  Whilst rehabilitation for a young offender is always an important consideration, and it also serves the interest of the community, the need for punishment of the offender and deterrence of others must be given due regard, and in most circumstances, for offences of this nature, they best serve the interests of the community as a whole.  The appeal courts have made clear that save in very rare cases, a training centre order should not be imposed for trafficking in substantial quantities of dangerous drugs.  Here, the quantity is substantial.  D1 would have been fully aware of the gravity of what he was doing and the risks that would be involved if he was apprehended.

D1

11.D1 is now aged 18 years.  He is the younger of two children in his family.  He dropped out of school at the age of 15 years without finishing Form 2.  This is not his first offence – he has convictions for obstructing a public officer in the due execution of his duty in 2008 when he was put on probation and in 2009, he was sentenced to the Detention Centre for a section 19 wounding offence.  Prior to his arrest, he worked as a part-time worker in Ikea and earned HK$400 a day.  He claimed to the interviewing officer that he only sold the dangerous drugs to the undercover police officer as the undercover police officer claimed that he had been introduced by his friend.  He purchased the drugs in bulk as this was cheaper.  He said that he planned to take up a course whilst in prison and ‘would walk on the right path, abstain from dangerous drugs, sever his linkage with dubious peers, and take care of his parents’.  I hope that he does keep these promises.

12.A lenient sentence is sought on behalf of D1.  His parents have been in court to show their support for him.

13.Save for his plea of guilty, there is really little else in mitigation before me.  Although D1 gave evidence on behalf of his co-accused, and I did not accept his evidence for the reasons as set out in my verdict delivered on 20 February 2012, he is entitled to the normal discount of one-third to reflect his pleas.

14.In the instant case, the ketamine involved in charge 1 is 14.43 grammes. For this quantity, I would consider a starting point of 4½ years, that is 54 months, to be appropriate.  In charge 2, the quantity of ketamine involved is 17.28 grammes.  I would also consider a starting point of 4½ years’ imprisonment to be appropriate.  For charge 3, where the quantity of ketamine involved is 15.34 grammes, I consider a starting point of 4½ years’ imprisonment to be appropriate.

15.Although linked by the fact that all the sales were to the same undercover police officer, they were separate and distinct acts of trafficking over a period of 11 days.  The fact that the police did not arrest D1 after the first time that he sold ketamine is not a ground to reduce the sentence.  The police are under no obligation to arrest after the first transaction thereby bringing to a premature end the undercover operation (see paragraph 12 of HKSAR v Ng Yau-kau & Anr, CACC 374/2007).

16.Giving D1 full credit for his pleas, he is sentenced to 3 years’ imprisonment on each of the charges 1 to 3.

17.In respect of charge 4, D1 admitted possession of 28.54 grammes of ketamine.  He admitted under caution that these were for his own consumption.  Apart from the drugs, an electronic scale, some resealable plastic bags and a spoon were also found. 

18.There is no sentencing tariff for offences of possession.  Nevertheless the normal sentence range will be between 12 and 18 months’ imprisonment.  The Court of Appeal inHKSAR v Mok Cho Tik, CACC 165/2000, held that:-

“.…. the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be.”

19.n my view, the appropriate starting point on charge 4 is one of 12 months’ imprisonment.

20.The Court of Appeal considered the latent risk factor and further stated:-

“The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”

21.Counsel for D1 submitted that D1 was in stable employment and had a stable income from which to support his drug addiction. He lived with his family and did not have any major expenses, and he had no previous convictions for trafficking in dangerous drugs.

22.I note from the Background Report before me that D1 was not in full time employment prior to his arrest.  Rather, he changed from working full time to work part-time for Ikea ‘in order to have more free time’.  He told the Probation Officer who interviewed him for the Background Report that he had become a drug abuser from the end of 2010 and consumed ketamine and cocaine to the tune of $500 a day, and had become ‘loose and unmotivated in work after taking dangerous drugs’. The quantity of ketamine found in his home could not be said to be a small quantity.  He had on 3 occasions prior to his arrest on 11August 2011 sold ketamine to the undercover police officer.  Clearly, there is a risk posed to society by these drugs being at large.  To reflect that risk, the starting point should be adjusted to 18 months’ imprisonment.

23.D1 is entitled to a discount of one-third to reflect his plea.  He is sentenced to 12 months’ imprisonment on charge 4.

24.These are all separate and distinct offences warranting consecutive sentences.  But I do bear in mind the totality principle of sentence and the overall criminality of D1.

25.D1 is sentenced as follows:

(a) Charge 1 - 3 years’ imprisonment;

(b) Charge 2 - 3 years’ imprisonment, concurrent to charge 1;

(c) Charge 3 - 3 years’ imprisonment, concurrent to charges 1 and 2;

(d) Charge 4 -1 year’s imprisonment, consecutive to charges 1, 2 and 3.

That is a total of 4 years’ imprisonment.

D2

26.D2 is aged 21 years and a first offender.  He has been educated to Form 5, and prior to his arrest he was a cargo delivery and dismounting worker on a casual basis, earning HK$10,000 to HK$13,000 a month.  He is the younger child in his family, and living with his parents, and contributed a small amount to his mother each month.

27.He has been convicted after trial and he has shown no remorse.  In my view, his role in the trafficking offence is indistinguishable from that of D1 – they jointly trafficked the dangerous drugs the subject matter of charge 1 to the undercover police officer.  The ketamine involved in charge 1 is 14.43 grammes. For this quantity, I would consider a starting point of 4½ years, that is 54 months, the same as I have adopted for D1, to be the appropriate sentence.

28.I can see no further matters to warrant my further reducing this sentence.  D2 is therefore sentenced to 4½ years’ imprisonment.

Please refer to CACC110/2012 for the relevant appeal(s) to the Court of Appeal.