HKSAR v. Berentson Christian Sigurd

DCCC 1080/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1080 OF 2013

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Reasons for Sentence

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1.The defendant has pleaded guilty to four charges today:

1) the first being possession of dangerous drugs;

2) the second being possession of apparatus fit and intended for the inhalation of dangerous drugs;

3) the third being trafficking in dangerous drugs; and

4) the fourth being in possession of Part I poison.

2.The dangerous drugs of Charge 1 include a small amount of ketamine, ecstasy and cannabis resin. 

3.The apparatus involved in the particulars of Charge 2 is namely an apparatus for inhaling “Ice” and, from the facts, it had been used and accepted it had been used by the defendant.

4.For Charge 3, the most serious charge, there is, in fact, a cocktail of drugs, in total, nine types of dangerous drugs, the most serious being 5 grammes of “Ice”. 

5.In addition to that, there was a total of 14.81 grammes of ketamine as well as 3.27 grammes of ecstasy.  Some of that ecstasy, MDMA, was mixed with some ketamine. 

6.In addition, there are small quantities of cocaine, herbal cannabis, cannabis resin and some tablets containing alprazolam.

7.The fourth charge, possession of Part 1 poison, was mainly tablets, tablets that can be defined as tranquilisers and painkillers.  In total there was just under 100 such tablets.

8.The facts of this case are relatively simple.

9.On 24 July last year, the police waited outside the defendant’s premises, his home.  When he came out of the premises, he was intercepted by the police.  I have been told that the police targeted these premises not for drug-related offences, but for a different matter.  Nothing has come of that other matter. 

10.However, the police, when they searched the defendant’s premises, found the dangerous drugs I have just referred to as well as the apparatus, hence the four charges.

11.I, from the facts, can see the defendant lives alone at the premises.  He is, according to his background, 41 years old and working in Hong Kong.

12.Defendant, your best mitigation today is your plea of guilty.

13.You are not a man of clear record.  You do have previous convictions relating to drugs.  However, they are possession of dangerous drugs offences, namely, in the year 2003 and the year 2006, for which you received financial penalties.  You have no previous for trafficking any dangerous drug.

14.I have been told that, in fact, you have a long-term drug addiction problem.  You were brought up in Hong Kong, educated in Hong Kong, and then in one of the most reputable boarding schools in the United Kingdom.  You completed a university education. 

15.However, I have been told today that it was whilst you were in university that you became involved in drugs.

16.When you returned to Hong Kong, you worked as a disc jockey.  You are at present working as a disc jockey.  I have been told that your income as a disc jockey, because you have a reputation, is good, at least $2,000 an evening.

17.This is relevant, because it has been put forward that you do not need to sell drugs to earn a living.  You have a perfectly legitimate profession.

18.I do have before me two letters of mitigation from, firstly, an employer, and secondly, a good friend, who is a respected journalist.

19.I will not repeat the contents of these letters, but your previous employer has said that he has known you for many, many years, both on a personal and professional level, and certainly, professionally, as his resident DJ, he has never suspected any drug use whilst at work nor suspected that you have sold any drugs whilst at work.

20.As for your friend, the journalist, he said he has known you for a very long time and clearly knows you well.  He is well aware you have a drug problem, but is in, I quote his words, “no way a dealer or trafficker in narcotics”.

21.This leads to the mitigation put forward today by Mr Davies, that the drugs found at your home were for the purposes of, for want of a better word, social trafficking.  You would share the drugs you had at home with friends who came up or friends who called you.  You would, more often than not, take the drugs together with those friends.  The gravity of the offence is supplying drugs to those people.

22.There is no dispute or, rather, the prosecution accepts the submission that some of the drugs in Charge 3 would have been for self-consumption.

23.I turn to sentence and the appropriate starting point.

24.The most serious drug, as I have said, is the 5 grammes of “Ice”.  If I were to take a mathematical approach, to traffic in the 5 grammes of “Ice” alone would, according to the authority of the Attorney-General v Ching Kwok Hung [1991] 2 HKLR 125, attract a 5-year starting point. 

25.The ketamine, 14.81 grammes of ketamine, alone would, according to the authority of the Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323, attract a starting point of about 4 years’ imprisonment. 

26.The MDMA, the ecstasy, according to that same authority, in that quantity, would attract a starting point of about 2 years’ imprisonment.

27.In my view, the rest of the dangerous drugs in Charge 3 really constitute a small amount, which any starting point for those drugs would be entirely in my discretion.

28.With situations where there is a cocktail of dangerous drugs, I turn to the authority of HKSAR v Wong Kin Kau [2010] 4 HKC 443, for guidance.  In that authority, the Court of Appeal identifies two approaches: the individual approach and the combined approach.

29.The guidelines for sentencing dangerous drugs, although set down by the Court of Appeal in bands according to quantity, are not straightjackets. 

30.As recently as January this year in HKSAR v Law Num Chun CACC 360/2013, the Court of Appeal referred to the 1990 decision of Lau Tak Ming, which sets out the bands for trafficking heroin, although there is no heroin in this case.

31.But in that authority, yet to be heard in full, the Court of Appeal seems to be addressing the fact that a mathematical approach should not necessarily be taken.  That authority, Lau Tak Ming, has a caveat and that caveat suggests that courts should consider not only quantity, but other relevant factors, such as:  any profit made, the packaging involved, the degree of trafficking or how the trafficking took place, the previous history of narcotic offences, and mitigation advanced on behalf of each defendant.

32.I agree with Mr Davies that in this case the defendant is not out selling in clubs or in public, but sharing the drugs he has in his possession with friends in his home.  It is, as he puts it, the least serious scenario for trafficking in dangerous drugs.

33.After careful consideration of the factors I have just referred to, I will take the combined approach to this cocktail.

34.I will, firstly, take “Ice, being the most serious drug in terms of potency, and then take into account significant quantities of other less serious drugs. 

35.In addition, in coming to an appropriate starting point, totality of sentence must be considered.

36.I will take a starting point of 4 years’ imprisonment for the quantity of “Ice”.  I will add 2 years to that starting point for the other dangerous drugs in Charge 3.

37.That would give a starting point of 6 years’ imprisonment.

38.Having accepted that some of the dangerous drugs in Charge 3 would be for self-consumption, I have taken into account a recent authority, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121. 

39.In that authority, the Court of Appeal accepts that there should be a discount applied to the basic starting point to reflect the situation where the court accepts that part of the dangerous drugs in a cocktail of dangerous drugs would be for the defendant’s own consumption. 

40.Having considered that authority, I will deduct 25 per cent from the basic starting point of 6 years.  That is a deduction of 18 months.

41.Therefore, a starting point for Charge 3 would be 54 months.

42.The other charges are less serious and I have taken a starting point for those offences as follows:

1) for Charge 1, I take a starting point of 2 years;

2) for Charge 2, I take a starting point of 9 months;

3) for Charge 3, as I have said, I take a starting point of 54 months;

4) for Charge 4, I take a starting point of 9 months.

43.You have pleaded guilty.  You are entitled to a discount of one-third from those starting points.

44.After that discount:

1) for Charge 1, you are sentenced to 1 year and 4 months;

2) Charge 2, you are sentenced to 6 months;

3) Charge 3, you are sentenced to 3 years;

4) Charge 4, you are sentenced to 6 months.

45.These sentences will be served concurrently.

46.That is a total of 3 years’ imprisonment.

COURT: Do you understand that sentence?

DEFENDANT: Yes.