HKSAR v. KWOK TSZ WING

DCCC 1033/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1033 OF 2010

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HKSAR
v.
KWOK Tsz-wing
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Before: Deputy District Judge H.F. Woo

Date: 22nd February 2011

Present: Mr. David Tolliday-Wright, Counsel on Fiat, for HKSAR/Director of Public Prosecution.
Mr. Yu Chun-cheung, Peter instructed by Messrs. Littlewoods assigned by D.L.A. for Defendant.

Offence: Trafficking in a dangerous drug(販運危險藥物)

Reasons for Sentence

Charge

1. The Defendant was charged with one count of trafficking in a dangerous drug, namely 32.61 grammes of a powder containing 27.29 grammesof ketamine. Such offence is contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2. The Defendant pleaded not guilty to the charge but indicted that he was prepared to plea guilty to possession of a dangerous drug.

3. As the evidence presented to this Court is insufficient to warrant a conviction for trafficking in a dangerous drug, the Defendantis acquitted of the charge. He was then convicted of possession of a dangerous drug under S. 8(1)(a) and (2) of the Dangerous Drugs Ordinance.

Sentence for possession of dangerous drug

4. S. 8(2) of the same Ordinance provides the maximum penalty as follows:-

“(2)(a) any person who contravenes any of the provision of subsection (1) shall be guilty of an offence and shall be liable-

(a) On conviction upon indictment to a fine of $1,000,000 and, subject to section 54A, to imprisonment for 7 years.”

Evidence from the Prosecution

5. At about 1:28 a.m. on 4 June 2010, two police officers saw a light goods vehicle (“the vehicle”) parked at Lamppost No. CF 2211,Hoi Ting Road, Mongkok, Kowloon (“Location 1”). The Defendant and four other people were on board of the vehicle and were lookingnervous. Feeling suspicious, the police officers approached the vehicle for enquiry. At that time, the Defendant was sitting onthe right side of the rear passenger row.

6. Upon search on the vehicle, PW1 found on the floor of the middle seat of the rear passenger row a cross shoulder bag (Exh. P-8)containing a resealable plastic bag (Exh. P-9) which in turn contained two resealable plastic bags. One of which contained 27.88grammes of a power containing 23.32 grammes of ketamine, and the other contained 4.73 grammes of a powder containing 3.97 grammesof ketamine (Exh. P-2). The Defendant was then arrested. Under caution, the Defendant admitted that the drugs in question wereketamine and they belonged to him for his own consumption.

7. The Defendant had cash of HK$869.40 found on him at the time of arrest. A house search was conducted on the Defendant’s residencein Wong Tai Sin. Nothing suspicious was found.

8. The average retail price (for transaction of 5 grammes and below) in June 2010 for ketamine was HK$117 per gramme. The quantityof 32.61 grammes of a power containing 27.29 grammes of ketamine could have sold at street level to abusers for HK$3,815 (i.e. 32.61grammes x HK$117).

9. The usual consumption of a ketamine addict on each occasion is around 0.1 to 0.2 gramme. Some compulsive users could abuse ketamineup to 2 grammes daily.

Evidence of the Defendant

10. The Defendant is now 27 years old. He lived with his parents and 2 elder sisters. He was employed by Fan Fat Trading Ltd. as awarehouse worker in Tsueng Kwan O with a monthly income of $8,500 to $9,000 since March 2010. He contributed $2,000 to $3,000 permonth as family expenses.

11. He was a drug dependent on ketamine for 3 to 4 years. He has 5 previous convictions of possession of ketamine. The Defendant hadto consume ketamine by sniffing it 4 times a day. He kept the drug at home and would normally consume it at home.

12. Whenever he got his salary, usually before the 5th day of the month he would then purchase a quantity of drug for his consumption of that month.

13. On 3 June 2010, after the Defendant had finished work at 7:30 p.m. He went to Morse Park to collect the $3,000 worth of ketaminefrom Chu the drug supplier whom the Defendant had placed an order with a day before.

14. The Defendant was then picked up by his friend ‘Cheung’ at Lok Fu in the vehicle. They together with 3 other friends went fordinner at Mongkok. During which the Defendant placed his shoulder bag containing the said drug in the vehicle.

15. After dinner they went to Tseung Kwan O for dessert. Later they were driven back to Mongkok. As Cheung suggested stopping thevehicle for chatting and smoking; the vehicle was eventually stopped at Location 1 with its windows opened.

16. Shortly after police officers arrived and later found that the said drug was kept inside the Defendant’s shoulder bag. The Defendantadmitted possession of the same.

Court’s observation and findings

17. According to Dr. Lam, the usual consumption of a ketamine addict is around 0.1 to 0.2 gramme on each occasion and some compulsiveusers may even abuse ketamine up to 2 grammes daily. The quantity of ketamine found in this case was 32.61 grammes of a powder containing27.29 grammes of ketamine. Such quantity would possibly have lasted a ketamine abuser for a month. Hence, such quantity would notbe inconsistent with the Defendant’s claim that it was purchased for his own consumption.

18. Apart from the drugs found on the Defendant, there was nothing found to suggest nor to infer that the Defendant was traffickingthe drug other than in possession of them for self consumption.

19. Consequently the Defendant is acquitted of the trafficking charge, but is convicted of possession of a dangerous drug, under S. 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134.

The background of the Defendant and mitigation

20. The Defendant is aged 27. At the age of 17, he was convicted of possession of part 1 poison. He started to abuse ketamine in 2003. He had his first drug conviction in September 2004, when he was 21. Nevertheless, he did not cherish the chance given by the Court. Subsequently there were similar convictions, one in October 2005 and three in 2009. Prior to his remand, he had to abuse ketaminedaily and spent about $100 each day. He claimed that his last dose of ketamine was taken in early September 2010. In the past hehad never been sent to a drug addiction treatment centre.

21. For his last conviction for possession of dangerous drug, the Defendant was sentenced to 4 months’ imprisonment in October 2009and was released in November 2009. In half a year’s time, he was arrested for the present offence. The DATC report revealed thatalthough the Defendant admitted that the seized ketamine was for his consumption, he was not remorseful for his misdeeds and stilldrew no insight into his problem.

22. The Defendant’s elder sister revealed that the family was aware of his addiction problem for years, but she expressed her helplessnessof the Defendant’s misdeeds. She was deeply disappointed with the Defendant but still hoped that he would grasp a chance to startanew.

23. However, the medical officer is of the opinion that the Defendant is not a drug dependent and hence, not suitable for admissionto a drug addiction treatment centre.

The Range of sentences for possession of dangerous drug

24. In view of the offence and the quantity of drugs involved, an immediate custodial sentence is inevitable. There is no sentencingtariff of such offence. Nevertheless the normal sentence range will be between 12 and 18 months’ imprisonment.

25. The Court of Appeal in HKSAR v. Mok Cho Tik CACC 165/2000 maintained their view that:-

“…. the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in hispossession should be in the range of 12 to 18 months (and that is the range that has been adopted particularly for cases in the Districtand High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence ofimprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposinglesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factorwhich will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting pointto be higher than it otherwise would be.”

26. This Court would therefore adopt a starting point of 18 months’ imprisonment for possession of dangerous drug in view of the circumstancesof the case and those of the Defendant.

Latent Risk Factor

27. The Court of Appeal further stated that:-

“The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff.Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a placeto which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The fullcircumstances of the risk must be assessed.”

28. The Defendant had been a ketamine abuser for about 3 to 4 years, he had 5 previous convictions for simple possession and none fortrafficking.

29. At the material time, the Defendant was found in a vehicle with 32.61 grammes of a powder containing 27.29 grammes of ketamine whichhe had just bought for $3,000. He claimed he intended to take the drug home where he usually kept them. The quantity of the drugwith which the Defendant was found to have would according to the Defendant have lasted him one month.

30. He had been earning $9,000 monthly as a warehouse attendant from March 2010 to September 2010. He contributed $2,000 to $3,000for family expenses every month. There was no evidence as to how much he needed for personal expenses.

31. In view of all the circumstances of the Defendant and those of the case, including the nature and quantity of drugs, this Courtis satisfied that an enhancement of sentence for the latent risk factor though not of significant gravity is nevertheless calledfor.

32. As such, this Court would add 3 months to the starting point of 18 months imprisonment for the latent risk factor. The appropriatestarting point for this case would therefore be 21 months. The Defendant is entitled to a 1/3 discount for his initial indicationof pleading guilty to simple possession, so as to reduce the sentence to 14 months’ imprisonment. There is no other mitigatingfactor which would justify a further reduction in sentence. As such, the Defendant has to serve a term of 14 moths’ imprisonment.

( H.F. Woo )
Deputy District Judge