HKSAR v. Ho Chu Kwong
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DCCC 656/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 656 OF 2014 -----------------------------------
---------------------------- 1.The defendant pleaded guilty to one charge of trafficking in dangerous drugs and one charge of possession of a dangerous drug. Summary of facts Charge 1 2.The defendant was stopped by a plainclothes Police officer at around 9:50pm on 10th May 2014 at Staircase C, 9th floor of Chung Chi House, Chung On Estate in Ma On Shan. The defendant ran down the stairs when the officer revealed his Police identity. The officer gave chase and managed to stop the defendant on the 7th floor. 3.4 transparent re-sealable plastic bags wrapped in a piece of tissue paper were found in the defendant’s left rear trousers pocket. The defendant was then cautioned for the suspected dangerous drugs inside the plastic bags. 4.Under caution, the defendant admitted that the bags contained ketamine, that they were given to him by a male called ‘sai ho’ at the bus stop of Chevalier Garden at around midnight on 3rd May, that whenever someone wanted drugs ‘sai ho’ would call the defendant and ask him to deliver the drugs to a specified destination and the defendant would receive $100 for each delivery. 5.The defendant was then arrested. In his subsequent video recorded interview, the defendant gave more details concerning the drugs found on him. The defendant claimed that ‘sai ho’ asked him to keep the drugs on 3rd May and told the defendant to bring the drugs to him at around 9pm on 10th May in return for $100. The defendant took the 4 bags of drugs and hid them in a hole under the fire standpipe system in Staircase C on the 9th floor of Chung Chi House. 6.‘Sai ho’ called the defendant at around 9:50pm on 10th May and asked the defendant to bring the 4 bags to a bus stop outside Chung On Shopping Centre. The defendant took out the drugs from the hiding place and was on his way when he was intercepted by the Police officer. 7.The contents in the bags were sent for analysis and was found to be a total of 49.36 g of a powder containing 40.96 g of ketamine. The estimated street value is $5,873. Charge 2 8.The defendant was released on bail at around 2:53pm on 12th May for the above offence. 9.At around 10:30pm the same day, a Police officer found one transparent re-sealable plastic bag wrapped in a piece of tissue paper in the fire standpipe system at Staircase B of 10th floor of Chung Chi House, Chung On Estate, that is, the same building where the defendant was intercepted by the plainclothes Police officer 2 days earlier. 10.Police officers laid ambush at the staircase area. The defendant entered staircase B on the 10th floor at around 2:10am on 13th May and was intercepted by Police officers. 11.Upon search, 1 transparent re-sealable plastic bag wrapped in a piece of tissue paper was found in the defendant’s right hand. The plastic bag that was in the standpipe system was no longer there. 12.Under caution, the defendant said that the bag he was holding contained ketamine for his own consumption. He bought the drug from an unknown male in Apliu Street, Sham Shui Po in early May for $2,000. He had left the drugs in the fire standpipe system at Staircase B on the 10th floor Chung Chi House and that he took the drug out for his consumption since he was unhappy. 13.The defendant was arrested and in the subsequent video recorded interview he claimed that at around midnight on 1st May 2014 he was suddenly approached by an unknown male near a MTR station who asked if the defendant wanted ketamine. The defendant said yes and paid $2,000 for the drugs. The defendant then returned to Ma On Shan and consumed some of the drugs he just bought and hid the remaining ketamine in the 10th floor staircase of Chung Chi House. The defendant went back to take the drugs out from the staircase after he was released on bail because he felt unhappy and wanted to take some drugs. 14.The contents of the bag were found to be 21.02 g of a powder containing 17.41 g of ketamine, with a street value of $2,499. Previous conviction 15.The defendant has one conviction for shoplifting in March 2012 when he was sentenced to probation for a period of 12 months. He was in breach of that order and was sentenced to be detained in the Rehabilitation Centre in June 2012. Mitigation 16.The defendant is 19 years old. He was born in Hong Kong but he spent his early childhood in the PRC. He came to Hong Kong to study up to form 3 level. The defendant and his parents live together at Chung Chi house in Ma On Shan, where the 2 offences took place. The defendant’s father is a casual construction site worker while his mother sells fruits. 17.After the defendant’s release from Rehabilitation Centre, he worked as a kitchen assistant earning $7,800 per month. Unfortunately, he was involved in a traffic accident in September 2013 and was seriously injured with a fractured left hand and leg and bleeding inside his head. He was hospitalized for over 2 weeks and was discharged in October 2013. Since then he stayed home for a long recovery process. He was unemployed at the time of his arrest and was living on a small sum of money he received for the traffic accident. 18.The defendant started to consume ketamine since July 2013, around the time before the traffic accident while he was working as a kitchen assistant. He bought ketamine from his old school mate, spending about $3,000 per month on drugs. 19.In relation to charge 1, the defendant knows it is a very serious offence and that there is a sentencing tariff and he will be in jail for a long time. He is sorry for his act and he committed it out of greed because he had no money during the time he was at home. 20.During the period of custody, his parents visited him frequently even though they are busy earning a living. His parents and grandmother are in court to support him. The defendant feels sorry to them and promises to turn a new leaf after his release. 21.In relation to charge 2, the defendant committed the offence while on bail. That was because the defendant felt very unhappy after his arrest for the first charge, and out of foolishness he went back to ketamine to seek relief. Sentencing guidelines 22.The tariffs for sentence after trial for traffickers in ketamine and ecstasy are found in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006. For trafficking of between 10 to 50 grammes of ketamine, the range of sentence is 4 to 6 years’ imprisonment. Sentence Charge 1 23.The maximum sentence for trafficking in dangerous drugs is that of life imprisonment. 24.Section 109A(1) of the Criminal Procedure Ordinance, Cap.221 stipulates that imprisonment should be a last option when sentencing someone below the age of 21. The defendant is 19 years and 3 months old. Trafficking in dangerous drugs is however an excepted offence within Schedule 3 of the Criminal Procedure Ordinance and by reason of section 109A(1A), section 109A(1) does not apply. 25.Having heard from Mr. Wong for the defendant, although I do sympathize with the defendant’s plight of getting injured in the traffic accident, I find that there are no mitigating factors that warrant a departure from the sentencing guidelines. The defendant is 19 years old and cannot be considered to be in the category of ‘extreme youth’ where age might be considered a mitigating factor. 26.The defendant knew clearly what he was doing and he was getting paid for delivering the drugs. He must have known that what he was doing was to help in the distribution of the drugs and thus increasing the chance of other young people being exposed to the risk of addiction. 27.People like the defendant are exactly the targets that those involved in the drug trade would recruit. There must be a strong element of deterrence incorporated into the sentence to warn off young people who might want to earn some quick money. 28.For the ketamine content of 40.96 g, I will adopt a starting point of 66 months’ imprisonment. I will grant the defendant the full one-third discount for his guilty plea and sentence him on charge 1 to 44 months’ imprisonment. Charge 2 29.The maximum sentence for possession of dangerous drugs is that of a fine of $1,000,000 and imprisonment for 7 years. 30.In relation to the possession of dangerous drugs charge, I will adopt a starting point of 15 months’ imprisonment given the amount of ketamine involved and the fact that the defendant committed the offence while on Police bail for the trafficking offence. I will grant him the full one-third discount for his guilty plea and sentence him on charge 2 to 10 months’ imprisonment. Totality 31.The defendant committed charge 2 just shortly after he was granted Police bail for the commission of charge 1. The defendant held the law in total disregard. 32.The sentence in charge 1 is however a long sentence and having stood back to consider the circumstances of the case and the defendant’s situation, I will order that 1 month of charge 2 be served consecutively to the sentence in charge 1, the balance to be served concurrently. 33.The total sentence for the 2 charges is therefore 45 months’ imprisonment.
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