HKSAR v. Lee Chi Wah

DCCC 278/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 278 OF 2013

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of wilfully obstructing police officers in the due execution of their duty, contrary to section 36(b) of the Offences against the Person Ordinance, Chapter 212; one charge of trafficking in 164.07 grammes of a powder containing 135.41grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134 and one charge of possession of 28.68 grammes of a powder containing para-aminobenzenesulphonamide, a Part 1 poison, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Chapter 138.

2.In summary at about 2000 hours on the 7 January this year the police conducted an anti-dangerous drug operation on the 7/F of Wah Lee Building in Tuen Mun.  When the defendant was seen walking out of the lift and opening the wooden door to Flat C with a key the police approached and revealed their identity.  The defendant dashed into the flat and closed the door.  The police warned the defendant they had power to search the flat but the defendant still refused to open the door. Eventually the police were able to enter the flat and found the defendant inside Room A.  Again the defendant tried to prevent the police from entering this room however the police were able to force the door open and subdue the defendant. 

3.On a search of the room the police found inside a metal safe under the computer desk 27 plastic bags containing the ketamine; one plastic bag containing the Part 1 Poison; an electronic scale and 18 empty plastic bags.  Under caution the defendant admitted the ketamine was his and that he was the only one who had a key to the safe. 

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 50 and 300 grammes sentence after trial falls within the range of 6-9 years imprisonment.

5.The defendant is only 19. Section 109A of the Criminal Procedure Ordinance, Chapter 221 provides no court shall sentence a person of or over 16 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 does not apply to trafficking in a dangerous drug, which is an excepted offence.  Further 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 (see Secretary for Justice v Ko Fei Tat [2002] 4 HKC 59).

6.I am satisfied from the information in the antecedents provided to court and the mitigation of Mr Wong this is not one of those very rare cases and that I can proceed to sentence today without calling for reports.

7.I have carefully considered everything said by Mr Wong on behalf of the defendant together with the letter written by the defendant.  I take into account the defendant’s young age and that whilst he has one previous conviction for possession of drugs he has none for trafficking.

8.I am satisfied the proper starting point after trial for trafficking in 135.41 grammes of ketamine is 7 years imprisonment.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 4 years and 8 months imprisonment.

Part 1 Poison

9.I am told the poison is sometimes taken together with ketamine.  The defendant believed it was in fact ketamine.  I am satisfied in the circumstances that a starting point of 3 months imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 months imprisonment.  I am further satisfied possession of the poison does not add to the culpability of the defendant and order the sentence to be served concurrent to charge 2.

Wilfully obstructing

10.Taking into account the police officers suffered only relatively minor injuries I am satisfied in the circumstances that a starting point of 1½ months imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 1 month imprisonment.  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 2.

Sentence

11.The defendant is convicted and sentenced as follows:

Charge 2 – 4 years and 8 months imprisonment;

Charge 3 – 2 months imprisonment concurrent to charge 2;

Charge 1 – 1 month imprisonment consecutive to charges 2 & 3.

Totality

12.I am satisfied a total sentence of 4 years and 9 months imprisonment properly reflects the defendant’s criminality on the charges and is a meaningful discount from the maximum sentence of the court.