HKSAR v. Lo Ka Kin, Daniel

DCCC 576/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 576 OF 2013

----------------------

---------------------

Reasons for Sentence

---------------------

1.Defendant is convicted on his own plea for one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The quantity of drug involved in this case was 10.33 grammes of ketamine.

Admitted Facts

2.This is a simple stop-and-search case.  At about 1.44 pm on 9 April 2013, when police officers were conducting an anti-narcotic operation in Cheung Chau, they found the defendant acting suspiciously.  Upon revealing police identity, the defendant fled.  He was eventually subdued. 

3.Upon search, 43 transparent resealable plastic bags and one paper packet were seized in the left back pocket of the defendant’s pants.  Upon examination, it was confirmed that those 43 plastic bags contained 14.99 grammes of powder containing 10.01 grammes of ketamine, and the paper packet contained 0.46 gramme of a powder containing 0.32 gramme of ketamine.  The street value was estimated to be HK$1,854.

4.At the time of the arrest, the defendant had cash $1,405.20 with him.  Under caution, he admitted that he knew all the drugs found on him were ketamine.

Mitigation

5.The defendant is now 27 years of age, single. He was educated up to Form 3.  At the time of the arrest, he worked as a renovation worker, earning about 10,000 each month.  He made a monthly contribution of 2,000 to his parents.  Admittedly, he is a drug addict.

6.He has 11 previous criminal convictions, two of which were for possession of dangerous drugs while four of which were for possession of Part I poison.  He is currently serving sentence in the DATC for his last conviction of possession of Part I poison on 24 April 2013.

Sentence

7.With a doubt, trafficking in dangerous drugs is a very serious offence.  The sentencing tariffs have been laid down by the Court of Appeal in Hii Siew Cheng.  For trafficking of ketamine where narcotic content is between 10 to 50 grammes, the starting point is within a range of 4 to 6 years’ imprisonment.

8.In mitigation, Mr Chan, solicitor for the defendant, referred me to the Court of Appeal decision in Wu Yau Man CACC 337 of 1996.  In that case, though the appellant was undergoing DATC treatment at the time of sentence, he was sentenced to 2 and a half years’ imprisonment.  In setting aside the prison term and substituting a DATC order, the Court of Appeal agreed that the trial judge failed to give sufficient regard to the prospects of rehabilitation of that young offender.  In that case, the appellant was charged, was convicted of an offence of possession of dangerous drugs. 

9.I am of the view that the Wu’s case is distinguishable from the nature and the seriousness of the offence involved. Trafficking in dangerous drugs itself is an excepted offence for which section 109A of the Criminal Procedure Ordinance, Cap 221 does not apply. In my view, the existing DATC order is not a justification to depart from the usual sentencing norm or tariffs.

10.In mitigation, it is also suggested that an insignificant amount of drug in question, that is, 0.32 gramme, was for self-consumption.  Prosecution does not take issue on that.

11.Having considered the quantity of drugs involved and mitigation advanced on behalf of the defendant, I adopt a starting point of 4 years’ imprisonment.  To reflect his guilty plea, sentence is reduced to 32 months.  Apart from that, I see no other mitigating factors that warrant any further discount. 

12.In the result, the defendant is sentenced to 32 months’ imprisonment.  Accordingly, I order that the DATC order imposed in ESCC 4502 of 2012 be discharged.