HKSAR v. SIU KAI KWAN

DCCC1103/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1103 OF 2011

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HKSAR
v.
Siu Kai-kwan
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Before: Deputy District Judge Woodcock

Date: 5 January 2012 at 10.38 am

Present: Mr Robert Andrews, Counsel on fiat, for HKSAR
Miss Chow Hoi-ling, Juliana, instructed by Y C Chow & Co., assigned by the Director of Legal Aid, for the Defendant

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

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Reasons for Sentence

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1. Defendant has pleaded guilty today to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. Particulars of the offence are that on 1 August 2011, in Tsing Yi, he unlawfully trafficked in a dangerous drug, namely,28.19 grammes of a powder containing 20.76 grammes of ketamine.

2. The facts of the case are very straightforward. In the early evening of 1 August, two police officers approached the defendant whilsthe sat alone in his vehicle. Defendant was asked to alight, and the police searched his vehicle. Ketamine was found in three differentlocations of the vehicle. The first location was the driver’s seat itself. This first packet contained 9.42 grammes of ketamine. A second bag containing three smaller bags filled with ketamine was found in a box in the front of the vehicle. These three bagscontained a total of 6.55 grammes of ketamine. In that same box, the police found some cash, three mobile phones. Of the three,I have been told, only two worked.

3. Of the significant exhibits seized were seven small transparent plastic bags found in a transparent plastic bag. Lastly, the policeseized a plastic bag, the third bag in the lining of the roof of this vehicle and it contained 4.79 grammes of ketamine. All theketamine, as I have said, totalled 20.76 grammes. And it has been agreed that as of August 2011, the value would have been $3,129.

4. The defendant made admissions when he was arrested at the scene. First, he admitted, after being arrested for possession of dangerousdrugs, that he had been carrying the ketamine for his friends and had consumed a little bit. The police then arrested him for traffickingin dangerous drugs and cautioned him, and he said that all the ketamine was for his own consumption. During the course of the investigation,the defendant told the police that he was a ketamine addict.

5. The defendant before today was a man of clear record. He was employed, I have been told, and earning approximately $10,000 a month. He was in fact self-employed and had rented a vehicle to conduct a transportation business and had been doing this for several years. I have also been told in mitigation that he did have a regular drug habit and took ketamine but not to the extent that at the timeof his arrest his health was greatly affected.

6. I have been informed in mitigation that the defendant readily admits that the ketamine found on the driver’s seat and in the box,as has been described as the first and the second packet, were bought by him. He bought them to take to his friends, and they wouldpartake in the ketamine together. That in itself is trafficking in the strict sense of the word.

7. Defendant has put forward in mitigation that the third packet containing 4.79 grammes of ketamine found in the lining of the roofof the vehicle was for his own use and belonged to him. Therefore, in short, he is saying nearly 16 grammes was bought and the restbelonged to him.

8. Defence counsel, Miss Chow, has asked me to take into account that a portion of the 20-odd grammes of ketamine was for the defendant’sown use.

9. There are several factors that I would take into consideration and one is whether he could afford his own drugs, and having heardhis income, I am satisfied that he could. Another indication would be whether the defendant physically showed signs of addiction,and he does not. But where ketamine is concerned, that is not unusual.

10. A third factor, a relevant factor would be where the dangerous drugs were found, be it on an accused person, in his or her home oron the street, in public. For example, if dangerous drugs were found at home, it would make it more likely that some of it was foran accused’s own use.

11. Here, the drugs were found in a vehicle. Odd that the drugs for his own use was well-hidden whereas the rest was in plain view. I have been told, however, that he was on his way to meet his friends and they were all going to take ketamine. So it is likelythat he would take his own drugs with him.

12. There was also no other paraphernalia found in the vehicle, such as electronic scales or a spoon. So it is possible that there istruth in the mitigation put forward.

13. I have taken into account the defendant’s plea today which shows remorse. The defendant had no previous convictions whatsoever. I have taken into account mitigation as well as the fact he has a supportive family. They are all here today.

14. I have taken into account the guidelines set out in the Court of Appeal case of the Secretary for Justice v Hii Siew Cheng CAAR7 of 2006. In that authority, the Court of Appeal set out sentencing guidelines for trafficking in ketamine, and where 10 to50 grammes of ketamine is trafficked, a 4 to 6-year term of imprisonment would be appropriate.

15. If in this case all 20.76 grammes was trafficked, mathematically, that would attract a 4-year-6-month starting point. If I acceptthat the first two packets were trafficked, a 16-gramme quantity would mathematically attract a 4‑year‑3‑month starting point. Having considered the facts and the mitigation, I do accept that part of the dangerous drugs found here were for the defendant’sown consumption.

16. I have referred myself to an authority, Secretary for Justice v Chan Chun Fai CAAR11 of 2010. That authority discusses in detail and refers to several authorities, the circumstances or the approach in sentencingwhere there is a trafficking-dangerous-drugs charge but part of the drugs is for self-consumption.

17. The situation here is slightly different in that the defendant has been very definitive. He says how much was trafficked and howmuch was for his own consumption.

18. Defendant, please stand up. After considering that authority and the guideline authority as well as all the mitigation put forwardand your plea and the quantities involved, I have taken for this charge a starting point of 4 years and 3 months. You are entitledto a discount of one‑third for your plea today. Having given you that discount, you will ultimately be sentenced to a term of2 years and 10 months’ imprisonment. You understand that sentence?

DEFENDANT: Understand.

A. J. Woodcock
Deputy District Judge