HKSAR v. Ma Wing Sze

DCCC 952/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 952 OF 2013

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is ketamine.

Summary of Facts

2.About 11:35 pm on 20 June 2013, when the defendant and her husband were approaching a private car (RY 9057) parked at Level 2, Tak Bo Garden Car Park, Ngau Tau Kok, they were stopped by customs officers for enquiry.

3.The defendant was searched at a nearby staircase.  In her handbag, 14 transparent resealable plastic bags (collectively "E1"; later found to contain a total of 37.19 grammes of a powder containing 24.45 grammes of ketamine) were found.  Her husband was also searched and nothing suspicious was found.

4.Under caution, the defendant admitted that E1 was ketamine and it was for her own consumption.

5.Both RY 9057 and the defendant's home at Tak Bo Garden were searched.  Nothing suspicious was found.  A car key to another private car (RV 2566) was found in the flat.

6.The defendant and her husband led the customs officers to RV 2566 for a search.  The defendant's husband was the registered owner of the car.  A paper bag which contained 2 bundles of empty transparent resealable plastic bags and an electronic scale were found underneath the driver seat.

7.Under caution, the defendant admitted having placed the empty plastic bags and electronic scale in RV 2566.  She gave an explanation for the use of both items, which had nothing to do drug trafficking.  In her video recorded interview, she remained silent.

8.The defendant now admits that she possessed E1 for the purpose of unlawful trafficking.

Mitigation & Sentence

9.The defendant is now 32 and has a clear record.  She is married and has a son (aged 2).  Prior to her arrest, she ran a shop selling Buddha plates earning $9,000 per month.  Her husband is a driver earning $10,000 per month.

10.In mitigation, defence counsel Ms. YANG submitted that the drug seized was for the defendant's own consumption and holding parties for friends.  The defendant is remorseful since she has almost gotten her husband into trouble.  She has determined to quit her drug habit.  A letter from the defendant was placed before me; its contents are duly noted.

11.A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders. 

12.The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see  SJ v HII Siew Cheng [2009] 1 HKLRD 1).  For 10 to 50 grammes, the sentence ranges from 4 to 6 years' imprisonment.

13.I note the defendant's claim that the drug was for her own consumption and holding parties for friends.  I bear in mind the principles laid down HKSAR v WONG Suet Hau & another [2002] 1 HKLRD 69 concerning this issue.

14.At present, other than her bare assesrtion for self-consumption made under caution, there is no evidence of the defendant being a drug user.  Based on the manners in which the drug was packaged; packaging paraphernalia (an electronic scale and many empty resealable plastic bags) were found in another car which belonged to her husband, I am of the view that the defendant is a trafficker.  Hence, I reject her claim that the ketamine found was for her own consumption and treating friends.

15.The defendant trafficked in 24.45 grammes of ketamine.  For that quantity, the appropriate starting point is 4.5 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 3 years.  Based on the information before me, I am unable to grant her any further meaningful reduction.  As an act of mercy, I am prepared to grant the defendant an overall nominal discount of 3 months to reflect her claim for partial self-consumption and all other relevant mitigating factors. The sentence I pass is 33 months' imprisonment.