A A
DCCC48/2012
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 48 OF 2012
C C
----------------------
D D
HKSAR
E v. E
Kwan Wai-hou
F F
----------------------
G G
Before: Deputy District Judge Woodcock
Date: 21 February 2012 at 12.46 pm
H Present: Mr Winston Chan, Senior Public Prosecutor, of the H
Department of Justice, for HKSAR
Ms Ada Y M Chan, of S H Chan & Co., instructed by the
I Director of Legal Aid, for the Defendant I
Offence: (1) Trafficking in dangerous drugs (販運危險藥物)
J (2) Failure to produce proof of identity on demand J
(未能在規定下出示身分證明文件)
K K
---------------------
L L
Reasons for Sentence
M --------------------- M
1. The defendant has pleaded guilty today to two charges,
N N
the first being trafficking in dangerous drugs, contrary to
O section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, O
Cap.134.
P P
2. The particulars of that offence are that he trafficked
Q Q
“Ice” with a purity of 9.39 grammes, ketamine with a purity of
3.24 grammes and cocaine with a purity of 0.1 gramme.
R R
S 3. The 2nd charge is failing to produce proof of identity S
on demand, contrary to section 17C(3) of the Immigration
T Ordinance, Cap.115. T
U U
CRT26/21.2.2012/AL/lt 1 DCCC48/2012/Sentence
V V
A A
4. When required by a police officer in uniform, the
defendant failed to produce on demand his proof of identity.
B B
C 5. The facts of this case are very straightforward. C
D 6. On 4 November last year, at about 1.30 am the D
defendant and a female were in a taxi travelling along Tai Po
E E
Road in Sham Shui Po. The police had at the same time set up a
road block ahead. Obviously, when the defendant spotted the road
F F
block ahead, he asked the taxi driver to stop before the road
G block. The defendant and the female alighted from the taxi. G
H 7. This aroused the suspicions of the police and they H
stopped the defendant. The police found a quantity of dangerous
I I
drugs on the back seat of the taxi, and upon a search of the
defendant, found more drugs in plastic bags in his left sock. He
J J
was asked for his identification card but failed to produce it.
K
Under caution, the defendant admitted all the dangerous drugs K
belonged to him and were for self-consumption and had nothing to
L do with the female who was accompanying him. L
M 8. The defendant has pleaded guilty today to trafficking M
this quantity of drugs. His best mitigation today is his plea of
N N
guilty.
O O
9. The defendant has a poor criminal record. He has two
P previous similar convictions of trafficking drugs. The defendant P
was sentenced in 1996 by the High Court to 8 years’ imprisonment
Q and subsequently in the District Court in 2003 to 6 years and Q
6 months’ imprisonment. The defendant also has other convictions
R R
for possession of dangerous drugs and theft offences.
S S
10. Although the defendant does have previous similar
T convictions, they are not prevalent enough to constitute an T
additional aggravating factor.
U U
CRT26/21.2.2012/AL/lt 2 DCCC48/2012/Sentence
V V
A A
11. I have heard mitigation in full from counsel and been
informed the defendant is single but cohabiting with his
B B
girlfriend. He is now 36 years old and until his arrest was
C working as a chef in a restaurant. C
D 12. There is a consideration in sentencing a defendant who D
traffics two or more different types of drugs. Here the amount
E E
of cocaine is de minimis and not part of my calculation in
coming to a starting point. The other two drugs in this case,
F F
“Ice” and ketamine, came in separate packaging, and I have to
G consider whether a combined approach or the individual approach G
is more appropriate in this case.
H H
13. I have referred myself to several authorities
I I
including authorities produced by both defence counsel and
prosecution counsel. Those include HKSAR v Yip Wai Yin [2004] 3
J J
HKC 367, HKSAR v Wong Kin Kau [2010] 4 HKC 443. Defence counsel
K
has referred me to HKSAR v Cheung Po Cho Tommy, CACC233/2005; K
prosecution counsel has referred me to HKSAR v Ho Chi Shing,
L CACC216/2008. L
M 14. Where ketamine is concerned, the often cited authority M
is Attorney General v Ching Kwok Hung [1991] HKLR 125. That
N N
authority laid down the following tariffs. Where up to 10
grammes of “Ice” is trafficked, a 3 to 7 year term of
O O
imprisonment would be appropriate. Where there is between 10 to
P 70 grammes of “Ice”, a 7 to 10 years’ term of imprisonment would P
be appropriate. An appropriate starting point here for
Q trafficking 9.39 grammes of “Ice” would be 7 years. Q
R R
15. According to the authority of SJ v Hii Siew Cheng,
CAAR7/2006, the tariff laid down for trafficking ketamine would
S S
be as follows. Where over 1 gramme to 10 grammes of ketamine is
T trafficked, an appropriate sentence would be between 2 to T
4 years’ imprisonment, so an appropriate starting point for
U U
CRT26/21.2.2012/AL/lt 3 DCCC48/2012/Sentence
V V
A A
trafficking 3.24 grammes of ketamine would be approximately
2 years and 6 months.
B B
C 16. I have taken into account that the combined approach C
is when the most serious drug would provide the starting point
D of the sentence which would be adjusted upwards to take into D
account of the quantity of the less serious drug. If I took a
E E
combined approach here, I would add the ketamine to the quantity
of “Ice” and get 12.63 grammes of “Ice”.
F F
G 17. However, at the same time I must also consider that G
the presence of more than one type of drug in a trafficking
H dangerous drug offence must in itself be an aggravating factor. H
I would find it appropriate to take a starting point between 7
I I
to 8 years’ imprisonment.
J J
18. If I took the individual approach, it would be too
K
harsh on the defendant to add the two starting points together, K
which would mean a 9½ year starting point. If I took that
L approach, I would have taken the higher starting point and added L
between 4 to 18 months, and this would be according to HKSAR v
M Cheung Kwok Leung Lowence, CACC539/2002, at page 12 paragraph M
39, an authority referred to me by defence counsel.
N N
19. Defendant, please stand up.
O O
P 20. I have taken into account the facts of this case, the P
types and quantity of the dangerous drugs involved, mitigation
Q put forward, and the authorities that have assisted me. I will Q
consider the combined approach appropriate and, with reference
R R
to the tariffs I have previously referred to, will take a
starting point for Charge 1 of 7 years and 6 months. You have
S S
pleaded guilty and you are entitled to a discount of one-third,
T a discount of 30 months. T
U U
CRT26/21.2.2012/AL/lt 4 DCCC48/2012/Sentence
V V
A A
21. For Charge 1, you will be sentenced to 5 years’
imprisonment. For Charge 2, I will take a 21 day starting point
B B
and give you a discount of 7 days for your plea. For Charge 2,
C you are sentenced to 14 days’ imprisonment, which will be served C
concurrently to Charge 1. That would leave a total of 5 years’
D imprisonment. D
E E
F F
G A. J. Woodcock G
Deputy District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT26/21.2.2012/AL/lt 5 DCCC48/2012/Sentence
V V
A A
DCCC48/2012
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 48 OF 2012
C C
----------------------
D D
HKSAR
E v. E
Kwan Wai-hou
F F
----------------------
G G
Before: Deputy District Judge Woodcock
Date: 21 February 2012 at 12.46 pm
H Present: Mr Winston Chan, Senior Public Prosecutor, of the H
Department of Justice, for HKSAR
Ms Ada Y M Chan, of S H Chan & Co., instructed by the
I Director of Legal Aid, for the Defendant I
Offence: (1) Trafficking in dangerous drugs (販運危險藥物)
J (2) Failure to produce proof of identity on demand J
(未能在規定下出示身分證明文件)
K K
---------------------
L L
Reasons for Sentence
M --------------------- M
1. The defendant has pleaded guilty today to two charges,
N N
the first being trafficking in dangerous drugs, contrary to
O section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, O
Cap.134.
P P
2. The particulars of that offence are that he trafficked
Q Q
“Ice” with a purity of 9.39 grammes, ketamine with a purity of
3.24 grammes and cocaine with a purity of 0.1 gramme.
R R
S 3. The 2nd charge is failing to produce proof of identity S
on demand, contrary to section 17C(3) of the Immigration
T Ordinance, Cap.115. T
U U
CRT26/21.2.2012/AL/lt 1 DCCC48/2012/Sentence
V V
A A
4. When required by a police officer in uniform, the
defendant failed to produce on demand his proof of identity.
B B
C 5. The facts of this case are very straightforward. C
D 6. On 4 November last year, at about 1.30 am the D
defendant and a female were in a taxi travelling along Tai Po
E E
Road in Sham Shui Po. The police had at the same time set up a
road block ahead. Obviously, when the defendant spotted the road
F F
block ahead, he asked the taxi driver to stop before the road
G block. The defendant and the female alighted from the taxi. G
H 7. This aroused the suspicions of the police and they H
stopped the defendant. The police found a quantity of dangerous
I I
drugs on the back seat of the taxi, and upon a search of the
defendant, found more drugs in plastic bags in his left sock. He
J J
was asked for his identification card but failed to produce it.
K
Under caution, the defendant admitted all the dangerous drugs K
belonged to him and were for self-consumption and had nothing to
L do with the female who was accompanying him. L
M 8. The defendant has pleaded guilty today to trafficking M
this quantity of drugs. His best mitigation today is his plea of
N N
guilty.
O O
9. The defendant has a poor criminal record. He has two
P previous similar convictions of trafficking drugs. The defendant P
was sentenced in 1996 by the High Court to 8 years’ imprisonment
Q and subsequently in the District Court in 2003 to 6 years and Q
6 months’ imprisonment. The defendant also has other convictions
R R
for possession of dangerous drugs and theft offences.
S S
10. Although the defendant does have previous similar
T convictions, they are not prevalent enough to constitute an T
additional aggravating factor.
U U
CRT26/21.2.2012/AL/lt 2 DCCC48/2012/Sentence
V V
A A
11. I have heard mitigation in full from counsel and been
informed the defendant is single but cohabiting with his
B B
girlfriend. He is now 36 years old and until his arrest was
C working as a chef in a restaurant. C
D 12. There is a consideration in sentencing a defendant who D
traffics two or more different types of drugs. Here the amount
E E
of cocaine is de minimis and not part of my calculation in
coming to a starting point. The other two drugs in this case,
F F
“Ice” and ketamine, came in separate packaging, and I have to
G consider whether a combined approach or the individual approach G
is more appropriate in this case.
H H
13. I have referred myself to several authorities
I I
including authorities produced by both defence counsel and
prosecution counsel. Those include HKSAR v Yip Wai Yin [2004] 3
J J
HKC 367, HKSAR v Wong Kin Kau [2010] 4 HKC 443. Defence counsel
K
has referred me to HKSAR v Cheung Po Cho Tommy, CACC233/2005; K
prosecution counsel has referred me to HKSAR v Ho Chi Shing,
L CACC216/2008. L
M 14. Where ketamine is concerned, the often cited authority M
is Attorney General v Ching Kwok Hung [1991] HKLR 125. That
N N
authority laid down the following tariffs. Where up to 10
grammes of “Ice” is trafficked, a 3 to 7 year term of
O O
imprisonment would be appropriate. Where there is between 10 to
P 70 grammes of “Ice”, a 7 to 10 years’ term of imprisonment would P
be appropriate. An appropriate starting point here for
Q trafficking 9.39 grammes of “Ice” would be 7 years. Q
R R
15. According to the authority of SJ v Hii Siew Cheng,
CAAR7/2006, the tariff laid down for trafficking ketamine would
S S
be as follows. Where over 1 gramme to 10 grammes of ketamine is
T trafficked, an appropriate sentence would be between 2 to T
4 years’ imprisonment, so an appropriate starting point for
U U
CRT26/21.2.2012/AL/lt 3 DCCC48/2012/Sentence
V V
A A
trafficking 3.24 grammes of ketamine would be approximately
2 years and 6 months.
B B
C 16. I have taken into account that the combined approach C
is when the most serious drug would provide the starting point
D of the sentence which would be adjusted upwards to take into D
account of the quantity of the less serious drug. If I took a
E E
combined approach here, I would add the ketamine to the quantity
of “Ice” and get 12.63 grammes of “Ice”.
F F
G 17. However, at the same time I must also consider that G
the presence of more than one type of drug in a trafficking
H dangerous drug offence must in itself be an aggravating factor. H
I would find it appropriate to take a starting point between 7
I I
to 8 years’ imprisonment.
J J
18. If I took the individual approach, it would be too
K
harsh on the defendant to add the two starting points together, K
which would mean a 9½ year starting point. If I took that
L approach, I would have taken the higher starting point and added L
between 4 to 18 months, and this would be according to HKSAR v
M Cheung Kwok Leung Lowence, CACC539/2002, at page 12 paragraph M
39, an authority referred to me by defence counsel.
N N
19. Defendant, please stand up.
O O
P 20. I have taken into account the facts of this case, the P
types and quantity of the dangerous drugs involved, mitigation
Q put forward, and the authorities that have assisted me. I will Q
consider the combined approach appropriate and, with reference
R R
to the tariffs I have previously referred to, will take a
starting point for Charge 1 of 7 years and 6 months. You have
S S
pleaded guilty and you are entitled to a discount of one-third,
T a discount of 30 months. T
U U
CRT26/21.2.2012/AL/lt 4 DCCC48/2012/Sentence
V V
A A
21. For Charge 1, you will be sentenced to 5 years’
imprisonment. For Charge 2, I will take a 21 day starting point
B B
and give you a discount of 7 days for your plea. For Charge 2,
C you are sentenced to 14 days’ imprisonment, which will be served C
concurrently to Charge 1. That would leave a total of 5 years’
D imprisonment. D
E E
F F
G A. J. Woodcock G
Deputy District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT26/21.2.2012/AL/lt 5 DCCC48/2012/Sentence
V V