HKSAR v. Kong Cho Man, Joe

DCCC 1058/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1058 OF 2012

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REASONS FOR SENTENCE

1.The defendant stands convicted after trial of one charge of trafficking in 17.75 grammes of a solid containing 14.13 grammes of ketamine; 0.23 gramme of a powder containing 0.16 gramme of ketamine; and 0.17 gramme of a solid containing 0.14 gramme of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134 (charge 1). The defendant earlier pleaded guilty to a charge of failure to produce proof of identity on demand, contrary to section 17C(3) of the Immigration Ordinance, Chapter 115 (charge 2).

2.In summary at approximately 9.18 a.m. on the 17 August 2012 the police saw the defendant standing by his private car GG 192 outside No. 60 Lok Shan Road in Hung Hom. The police approached the defendant and PC 6982 asked him to produce his identity card.  The defendant said he had lost his identity card a week earlier but had not reported the loss.  Suspecting that the defendant was in possession of dangerous drugs PC 6982 conducted a body search.  PC 6982 found from a pocket of the defendant’s trousers a purple zip up holder, inside which was a re-sealable plastic bag and a piece of white paper, both containing ketamine.  On a search of the car two re-sealable plastic bags were found under the carpet at the driver’s seat, one containing ketamine and the other cocaine.  At the police station the defendant was found in possession of HK$26,140 and RMB100.

3.In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Leung together with the letters written by the defendant and his mother. I take into account the defendant has a five year old son to take care of.  I also take into account the defendant has no previous convictions for trafficking in dangerous drugs.

4.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 10 and 50 grammes sentence after trial falls within the range of 4-6 years imprisonment. I am satisfied the proper starting point after trial for 14.29 grammes of ketamine is 4 years and 3 months imprisonment.

5.The courts have equated for sentencing purposes cocaine with heroin (seeAttorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).    InR v Lau Tak-ming[1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years imprisonment.  I am satisfied the proper starting point after trial for 0.14 grammes of cocaine is 2 years imprisonment.

6.Adopting the ‘individual’ approach this would result in a starting point of 6 years and 3 months imprisonment, which clearly is excessive for if all the drugs, totalling 14.43 grammes, were cocaine sentence upon conviction after trial would fall in the range of 5 to 8 years imprisonment, with a likely starting point based on quantity alone of less than 5 years and 6 months imprisonment. 

7.In my view the ‘combined’ approach to sentence is therefore appropriate.  Whilst the most potent drug is cocaine sentence must reflect that by far the largest quantity is ketamine.  In all the circumstances I am satisfied a starting point of 4 years and 9 months imprisonment is appropriate.  Taking into account the defendant pleaded guilty to possession and admitted the majority of the prosecution case resulting in a very short trial I reduce the sentence by 9 months imprisonment.  The defendant is convicted and sentenced to 4 years imprisonment.

8.For failing to produce proof of identity the maximum sentence is a fine of $5,000. This charge is usually dealt with in the Magistracy by way of a small fine.  The defendant is convicted and fined $150 to be paid within 7 days.  In default of payment he will serve 1 day imprisonment consecutive to the sentence on charge 1.