HKSAR v. Wong Ka Wo

DCCC 125/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 125 OF 2014

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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 8:20 pm on 16 December 2013, PC 11015 (PW1) and 2 colleagues were patrolling along Castle Peak Road in Shamshuipo. PW1 stopped the defendant for enquiry outside the building situated at No.442 Castle Peak Road.

3.Upon search, a resealable plastic bag (E1; later found to contain 2.81 grammes of a solid containing 1.97 grammes of ketamine) and a plastic bag (E2, later found to contain 26.92 grammes of a solid containing 16.10 grammes of ketamine) were found in the defendant's sling bag.  In the defendant's left sock, 2 plastic bags (collectively "E3"; later found to contain a total of 28.31 grammes of a solid containing 20.37 grammes of ketamine) were found.  In his right sock, 5 plastic bags (collectively "E4"; later found to contain a total of 13.78 grammes of a solid containing 9.40 grammes of ketamine) were found. 

4.Under caution, the defendant claimed that the drug seized was for his own consumption.  His residence in Un Leng Village, Tai Po was searched a few hours later and nothing incriminating was found.  He remained silent in his video recorded interview.

5.The defendant now admits that he possessed E1 to E4 for the purpose of unlawful trafficking.

Mitigation & Sentence

6.The defendant is now 28 and has 5 conviction records, including 3 "simple possession" offences and 1 "trafficking" offence.  His last conviction was "simple possession"; he was given a DATC Order in May 2013 and was released in October the same year.

7.Defence lawyer Mr. CHAM informed me that the defendant was divorced in November 2013.  After completing F.3, he became a construction worker and was able to earn about $16,000 per month.  Upon release from DATC in October last year, the defendant worked as a part-time construction worker earning a few thousand dollars per month.

8.In mitigation, Mr. CHAM acknowledged that the defendant committed the present offence only 2 months after being released.  He submitted that the defendant was in financial difficulty and had to pay for the legal costs of his divorce.  Mr. CHAM also submitted that the defendant had intended to consume part of the drug himself, but did not have a particular quantity in mind.  A letter written by the defendant was placed before me; its contents are duly noted.

9.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.  Having financial difficulties (however serious) is not an excuse to commit any crime.

10.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.

11.The defendant trafficked in 47.84 grammes of ketamine.  For that quantity, the appropriate starting point is 5.5 years' imprisonment.  The defendant is not a fresh offender of "drug trafficking", but I would not raise the starting point for his previous similar conviction.  A one-third discount is given for the guilty plea, reducing the sentence to 44 months.

12.I note that there is evidence suggesting that the defendant is a drug addict and that he has claimed partial self-consumption in the course of mitigation (though quantity unknown).  I am prepared to grant him a nominal discount of 4 months to reflect this.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence I pass is 40 months' imprisonment.