A A
DCCC 244/2016
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 244 OF 2016 C
D
---------------------- D
HKSAR
E E
v
F Kwok Chun-wa F
G ---------------------- G
Before: HH Judge Casewell
H Date: 5 July 2016 at 10.30 am H
Present: Mr Brian Littlewood, Solicitor on fiat, for HKSAR
Mr Andrew Humphrey Bullett, instructed by Li
I & Partners, assigned by the Director of Legal Aid, for I
the defendant
J Offence: Trafficking in a dangerous drug (販運危險藥物) J
---------------------
K K
Reasons for Sentence
L L
---------------------
M 1. The defendant has pleaded guilty to trafficking in a M
dangerous drug. The date of the offence was 29 December 2015,
N and the amount of drugs is 20.70 grammes of a powder which N
contained 7.47 grammes of ketamine, so the quantity of narcotic,
O O
which is the relevant quantity, is 7.47 grammes.
P P
2. The facts of the case have been agreed by the
Q defendant, and they are, simply stated, this was a stop and Q
search of the defendant occurring in the evening of 29 December
R last year, and the defendant was stopped at the lift lobby of a R
building in Tuen Mun.
S S
3. On search, the drugs were discovered on the defendant.
T T
They were found to be broken down into two resealable
U transparent plastic bags which contained 7.47 grammes of U
CRT31/5.7.2016/KS 1 DCCC 244/2016/Sentence
V V
A A
ketamine. They were found in the defendant’s pocket. Also a
phone and some cash was also found in the defendant’s
B B
possession.
C C
4. On arrest and caution, the defendant immediately said
D that one packet of the “K chai”, which means ketamine, was for D
his self-consumption, and the other was for another person. That
E E
was later post-recorded and confirmed by the defendant. Later
on, he again reiterated that one packet of ketamine was for his
F F
consumption and the other packet had been obtained for his
G friend. G
H 5. The estimated street value of all the ketamine is H
$2,650. Neither the facts nor the Government Chemist Certificate
I I
say how the drugs were broken down within the two resealable
plastic bags and what the relative amounts were.
J J
K
6. The defendant has admitted both his antecedents and K
his criminal record. The antecedents show that the defendant is
L aged 26. He has been educated up to Secondary 4 level. He L
worked as a property agent in the past, with a monthly salary of
M $20,000 at the time of his arrest. He has told the interviewing M
officer for the antecedents statement he had been addicted to
N N
ketamine for 10 years. There is some support for that in the
criminal record. The defendant has been convicted on three
O O
previous occasions, two offences involving Offences Against the
P Public Order Ordinance which led to him being sent to P
rehabilitation centre back in 2007 and 2008, but more recently,
Q in 2012, convicted for the offence of possession of a dangerous Q
drug. It was his first offence for that, and so he was fined
R R
$2,000 on that occasion, although the defendant says that he had
been a consumer of the drug for a much longer period.
S S
T 7. As far as mitigation is concerned, the defence refers T
to the fact that a portion of the drugs, and they say it must be
U U
CRT31/5.7.2016/KS 2 DCCC 244/2016/Sentence
V V
A A
taken as a significant portion of the drugs, were for the
defendant’s own consumption.
B B
C 8. The defendant has also provided the court with a C
number of letters, a letter showing the defendant’s remorse, and
D also from his previous employer. Of some significance is a D
letter from Mr Ho, who is the social worker at Caritas, and he
E E
says that as recently as 2014 the defendant was voluntarily
seeking assistance for his drug addiction, and attended drug
F F
rehabilitation.
G G
9. Clearly that was not successful at this point, but it
H does show a realisation by the defendant that his drug addiction H
is a problem, and the fact that he voluntarily, and without
I I
being compelled to by the authorities, sought to deal with his
addiction himself, that is a positive signal, and it is to be
J J
hoped the defendant can perhaps build on that in the future
K
after his release from custody. The defendant himself K
acknowledges in his letter to me that he will serve a sentence
L of imprisonment. He has a realistic approach to his future. L
M 10. As far as the approach to sentencing is concerned, the M
sentence for trafficking in the dangerous drug ketamine, the
N N
starting point for sentence is largely determined by the
guideline sentences.
O O
P 11. The quantity of drug that I am concerned with here is P
7.47 grammes of ketamine. That means that the quantity falls
Q within the guideline of 1 to 10 grammes of ketamine, and that is Q
a figure of between 2 to 4 years’ imprisonment. This is a
R R
discretionary figure, but is largely mathematically determined
by the quantity of drug in order to achieve consistency.
S S
T 12. Taking the figure of 7.47 grammes of ketamine, it T
would appear to me that the appropriate initial starting point
U U
CRT31/5.7.2016/KS 3 DCCC 244/2016/Sentence
V V
A A
for sentence is one of 3¼ years, which is 39 months’
imprisonment.
B B
C 13. I must now consider if there are any aggravating C
factors that do not appear on the face of the facts agreed by
D the defendant to be any aggravating factors. I must now consider D
whether there are any mitigating factors that might reduce that
E E
starting point for sentence.
F F
14. The clear mitigating factor is the defendant’s
G self-consumption of the drug. If this is a significant G
proportion of the drug, it can lead to a reduction in the
H starting point. H
I I
15. The defendant, in his records of interview and
cautioned statements, has always said that one packet was for
J J
himself and the other one was for a friend. Although the
K
quantities are not determined and cannot be determined from the K
Government Chemist Certificate, from the Bar table I have been
L told that it was the understanding of the defendant that the L
larger quantity was for his friend.
M M
16. The approach I shall take is to assume that although
N N
the drugs were not broken down, they would be broken down into
not radically different portions. The authorities show that
O O
where there is a reduction for self-consumption that involves a
P significant portion of the drug, that figure can range between P
10 to 25 per cent of the initial starting point, and the
Q calculation of that figure is largely discretionary, but will Q
depend, to a certain extent, on the quantity or proportion of
R R
the drug that the defendant would have consumed himself.
S S
17. In this case, taking into account all the factors that
T I have before me, which is the admission of the defendant, the T
lack of any equipment for further trafficking the drug on search
U of his residence, and the defendant’s statement as to what he U
CRT31/5.7.2016/KS 4 DCCC 244/2016/Sentence
V V
A A
would have done with the drug himself, I have decided that the
reduction for this particular head of mitigation should lie
B B
between 10 to 15 per cent of the initial figure, and I shall
C capitalise that as a figure of 6 months’ imprisonment. C
D 18. That brings the starting point of sentence down to D
33 months’ imprisonment. That figure is subject to a one-third
E E
deduction for the defendant’s plea of guilty, which leads to an
end figure of 22 months’ imprisonment, and that is the sentence
F F
that will be imposed: one of 22 months’ imprisonment.
G G
H H
I I
J J
K K
(T Casewell)
District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT31/5.7.2016/KS 5 DCCC 244/2016/Sentence
V V
A A
DCCC 244/2016
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 244 OF 2016 C
D
---------------------- D
HKSAR
E E
v
F Kwok Chun-wa F
G ---------------------- G
Before: HH Judge Casewell
H Date: 5 July 2016 at 10.30 am H
Present: Mr Brian Littlewood, Solicitor on fiat, for HKSAR
Mr Andrew Humphrey Bullett, instructed by Li
I & Partners, assigned by the Director of Legal Aid, for I
the defendant
J Offence: Trafficking in a dangerous drug (販運危險藥物) J
---------------------
K K
Reasons for Sentence
L L
---------------------
M 1. The defendant has pleaded guilty to trafficking in a M
dangerous drug. The date of the offence was 29 December 2015,
N and the amount of drugs is 20.70 grammes of a powder which N
contained 7.47 grammes of ketamine, so the quantity of narcotic,
O O
which is the relevant quantity, is 7.47 grammes.
P P
2. The facts of the case have been agreed by the
Q defendant, and they are, simply stated, this was a stop and Q
search of the defendant occurring in the evening of 29 December
R last year, and the defendant was stopped at the lift lobby of a R
building in Tuen Mun.
S S
3. On search, the drugs were discovered on the defendant.
T T
They were found to be broken down into two resealable
U transparent plastic bags which contained 7.47 grammes of U
CRT31/5.7.2016/KS 1 DCCC 244/2016/Sentence
V V
A A
ketamine. They were found in the defendant’s pocket. Also a
phone and some cash was also found in the defendant’s
B B
possession.
C C
4. On arrest and caution, the defendant immediately said
D that one packet of the “K chai”, which means ketamine, was for D
his self-consumption, and the other was for another person. That
E E
was later post-recorded and confirmed by the defendant. Later
on, he again reiterated that one packet of ketamine was for his
F F
consumption and the other packet had been obtained for his
G friend. G
H 5. The estimated street value of all the ketamine is H
$2,650. Neither the facts nor the Government Chemist Certificate
I I
say how the drugs were broken down within the two resealable
plastic bags and what the relative amounts were.
J J
K
6. The defendant has admitted both his antecedents and K
his criminal record. The antecedents show that the defendant is
L aged 26. He has been educated up to Secondary 4 level. He L
worked as a property agent in the past, with a monthly salary of
M $20,000 at the time of his arrest. He has told the interviewing M
officer for the antecedents statement he had been addicted to
N N
ketamine for 10 years. There is some support for that in the
criminal record. The defendant has been convicted on three
O O
previous occasions, two offences involving Offences Against the
P Public Order Ordinance which led to him being sent to P
rehabilitation centre back in 2007 and 2008, but more recently,
Q in 2012, convicted for the offence of possession of a dangerous Q
drug. It was his first offence for that, and so he was fined
R R
$2,000 on that occasion, although the defendant says that he had
been a consumer of the drug for a much longer period.
S S
T 7. As far as mitigation is concerned, the defence refers T
to the fact that a portion of the drugs, and they say it must be
U U
CRT31/5.7.2016/KS 2 DCCC 244/2016/Sentence
V V
A A
taken as a significant portion of the drugs, were for the
defendant’s own consumption.
B B
C 8. The defendant has also provided the court with a C
number of letters, a letter showing the defendant’s remorse, and
D also from his previous employer. Of some significance is a D
letter from Mr Ho, who is the social worker at Caritas, and he
E E
says that as recently as 2014 the defendant was voluntarily
seeking assistance for his drug addiction, and attended drug
F F
rehabilitation.
G G
9. Clearly that was not successful at this point, but it
H does show a realisation by the defendant that his drug addiction H
is a problem, and the fact that he voluntarily, and without
I I
being compelled to by the authorities, sought to deal with his
addiction himself, that is a positive signal, and it is to be
J J
hoped the defendant can perhaps build on that in the future
K
after his release from custody. The defendant himself K
acknowledges in his letter to me that he will serve a sentence
L of imprisonment. He has a realistic approach to his future. L
M 10. As far as the approach to sentencing is concerned, the M
sentence for trafficking in the dangerous drug ketamine, the
N N
starting point for sentence is largely determined by the
guideline sentences.
O O
P 11. The quantity of drug that I am concerned with here is P
7.47 grammes of ketamine. That means that the quantity falls
Q within the guideline of 1 to 10 grammes of ketamine, and that is Q
a figure of between 2 to 4 years’ imprisonment. This is a
R R
discretionary figure, but is largely mathematically determined
by the quantity of drug in order to achieve consistency.
S S
T 12. Taking the figure of 7.47 grammes of ketamine, it T
would appear to me that the appropriate initial starting point
U U
CRT31/5.7.2016/KS 3 DCCC 244/2016/Sentence
V V
A A
for sentence is one of 3¼ years, which is 39 months’
imprisonment.
B B
C 13. I must now consider if there are any aggravating C
factors that do not appear on the face of the facts agreed by
D the defendant to be any aggravating factors. I must now consider D
whether there are any mitigating factors that might reduce that
E E
starting point for sentence.
F F
14. The clear mitigating factor is the defendant’s
G self-consumption of the drug. If this is a significant G
proportion of the drug, it can lead to a reduction in the
H starting point. H
I I
15. The defendant, in his records of interview and
cautioned statements, has always said that one packet was for
J J
himself and the other one was for a friend. Although the
K
quantities are not determined and cannot be determined from the K
Government Chemist Certificate, from the Bar table I have been
L told that it was the understanding of the defendant that the L
larger quantity was for his friend.
M M
16. The approach I shall take is to assume that although
N N
the drugs were not broken down, they would be broken down into
not radically different portions. The authorities show that
O O
where there is a reduction for self-consumption that involves a
P significant portion of the drug, that figure can range between P
10 to 25 per cent of the initial starting point, and the
Q calculation of that figure is largely discretionary, but will Q
depend, to a certain extent, on the quantity or proportion of
R R
the drug that the defendant would have consumed himself.
S S
17. In this case, taking into account all the factors that
T I have before me, which is the admission of the defendant, the T
lack of any equipment for further trafficking the drug on search
U of his residence, and the defendant’s statement as to what he U
CRT31/5.7.2016/KS 4 DCCC 244/2016/Sentence
V V
A A
would have done with the drug himself, I have decided that the
reduction for this particular head of mitigation should lie
B B
between 10 to 15 per cent of the initial figure, and I shall
C capitalise that as a figure of 6 months’ imprisonment. C
D 18. That brings the starting point of sentence down to D
33 months’ imprisonment. That figure is subject to a one-third
E E
deduction for the defendant’s plea of guilty, which leads to an
end figure of 22 months’ imprisonment, and that is the sentence
F F
that will be imposed: one of 22 months’ imprisonment.
G G
H H
I I
J J
K K
(T Casewell)
District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT31/5.7.2016/KS 5 DCCC 244/2016/Sentence
V V