HKSAR v. Wong Kam Lung

DCCC 1056/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1056 OF 2012

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 120 grammes of a powder containing 90grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134 and one charge of wilfully obstructing members of the Customs and Excise Service in the execution of their duties, contrary to sections 17F and 17I of the Customs and Excise Service Ordinance, Chapter 342.

2.In summary in the afternoon of the 6th September last year officers of the Customs & Excise Department, including CO 9980 and CO 96102, were conducting anti-narcotics duty in Kowloon Tong when they saw the defendant acting suspiciously in the vicinity of the Kowloon Tong MTR station. 

3.The officers intercepted the defendant and on revealing their identity the defendant immediately turned round and ran away.  The officers gave chase and subdued the defendant at the lift lobby near Festival Walk.  The defendant continued to struggle until CO 9980 was able to handcuff the defendant.

4.On a body search of the defendant CO 9980 found one plastic bag containing nine re-sealable plastic bags containing the ketamine.   

5.In Secretary for Justice v Hii Siew Cheng[2008] 3 HKC 325 the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 50 and 300 grammes sentence after trial falls within the range of 6-9 years imprisonment. I am satisfied the proper starting point after trial for 90 grammes of ketamine is 6 years and 6 months imprisonment. 

6.In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Leung together with the mitigation letters.  I take into account the defendant has no previous convictions for trafficking in dangerous drugs and was last before the court in 2005 when he received a total sentence of 18 months imprisonment.

7.I am told the defendant due to peer pressure first started taking ketamine in 1999 but after meeting his girlfriend in 2006 she helped him to get rid of his addiction.  Sadly both his father and girlfriend were diagnosed with cancer and passed away in 2009 and 2010.  This led to the defendant relapsing to drugs and slowly he began to take more and more ketamine.

8.Under caution the defendant said the drugs were for his own consumption.  Mr Leung submits that four of the nine packets were for the defendant’s own consumption.  According to the defendant each packet was of equal weight.  Therefore 50 grammes of ketamine would be left for trafficking, which quantity would attract a starting point after trial of 6 years imprisonment.

9.Whilst there is nothing to confirm the defendant’s drug addiction, for example previous drug convictions or attendance at a DATC, I am prepared to accept some of the ketamine, but not as much as 40 grammes, may have been for his own use. 

10.In deciding how much weight is to be attached to the fact some of the drugs may have been for the defendant’s own use I have considered the decisions in HKSAR v. Wong Suet Hau [2002] 1 HKLRD 69, in particular at paragraphs 33 and 34 and HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.

11.Taking into account the quantity and packaging of the ketamine; that the ketamine was found on the defendant in the street; possession of drugs carries a sentence in any event; and the latent risk factor, I am satisfied the starting point of 6 years and 6 months imprisonment should be reduced by 6 months to one of 6 years imprisonment.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 4 years imprisonment.  

Wilfully obstructing

12.Taking into account that both CO 9980 and CO 96102 fortunately only sustained tenderness to different parts of their bodies I am satisfied in the circumstances that a starting point of 21 days imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 14 days imprisonment.

13.The defendant’s attempt to avoid arrest is a separate offence from trafficking in drugs and therefore a consecutive sentence is appropriate.   I order this sentence to be served consecutive to the sentence on charge 1.   I am satisfied a total sentence of 4 years and 2 weeks imprisonment properly reflects the defendant’s criminality on the two charges.