HKSAR v. TSUI WING LEUNG

HCCC 329/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 329 OF 2013

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: Yes, defendant, please stand.

The defendant has pleaded guilty to one count of trafficking in a dangerous drug, namely 79.16 grammes of a solid containing 55.04 grammes of ketamine, and 9.66 of a crystalline solid containing 9.41 grammes of methamphetamine hydrochloride.

On 5 April 2013, police officers were conducting a dangerous drugs operation, and at around 2.30 pm, the defendant were seen leaving the premises, Room 1710, Chak Yun House in Tin Shui Wai. He was brought back into the premises, and upon a search, inside his right front trousers pocket was found a plastic bag containing three transparent resealable plastic bags. On the outside of the first bag was written 20 times 2, and inside that bag were 20 smaller bags which contained a substance subsequently found to be ketamine.

A second bag contained 30 smaller bags which contained substance subsequently found to be ketamine. The total amount of the ketamine found on the defendant’s person amounted to the amount which is in the charge.

The third bag contained “Ice”, which was found by the Government Chemist to be 9.41 grammes.

And under caution, the accused said that because he had been unemployed, and therefore needed money, he was selling what he called “perfume”, and the “pork” is for his own consumption. Subsequently, he was interviewed. He explained that by saying “perfume”, he was referring to ketamine, and “pork”, he was referring to “Ice”.

The defendant also told the police that he had collected the drugs from under a bush, and paid $3,000 for it, and he said he knew that the bag contained ketamine and “Ice”. He intended to sell the ketamine for $100 a gramme. The estimated street value of the ketamine was $9,420, and the estimated street value of the methamphetamine hydrochloride was $7,360.

The defendant is aged 27, and has two previous convictions for possession of dangerous drugs. For the first conviction, he was sent to a detention centre; and for the second conviction, he was fined $2,000. So this is his first very serious offence.

Mr Sadhwani had submitted letters from the defendant’s mother and sister and also from the social worker, the youth outreach programme and they all speak about his angst about having been raised in a single-parent family, and how he became introverted.

This is an excuse, and at the age of 27, the defendant can no longer blame being raised in a single-parent family for his own conduct. The one thing I can gather from all the letters is that his mother has great concern for him and stands by him and has stood by him throughout.

But family circumstances pale into insignificance in face of the evil that drugs caused to our society, and this is an unending exercise by the authorities to stamp out drugs and drug-trafficking, and the defendant has been part of it due to his own selfish reasons to get easy money. That is why the Court of Appeal has laid down guidelines for sentencing for these drugs.

This court is grateful to Mr Mitchell for the cases he has submitted to this court in order to assist this court in arriving at a proper sentence. He has also very helpfully worked out the different tests that the Court of Appeal has recommended in the various cases. Both the conversion test and also the ratio test are applicable in this case.

In relation to the fact that the charge is one of a cocktail of drugs, there is, for the court to work out whether the individual approach or the combined approach would be more justified in the circumstances. In ketamine, I have considered the sentencing guidelines in the case Hii Siew Cheng in 2008, [2008] 3 HKC 323, that for 50 to 300 grammes, it would merit an imprisonment of 6 to 9 years. And if the “Ice” in the charge was considered separately, according to the guidelines in Ching Kwok Hung [1991] 2 HKLR 125, which recommended that for trafficking up to 12 grammes, it would merit a sentence of 3 to 7 years.

Now, taking the conversion test, to convert the ketamine from 55.04 grammes to “Ice”, I accept Mr Mitchell’s mathematics in this case, and it would convert to approximately 8.5 grammes of “Ice”. And if that is added to the 9.41 grammes of “Ice”, it would make a total of 17.91 grammes of “Ice”, which would give us a starting point of 7 and a half years.

However, both counsel have agreed that the one-third of the “Ice” which was found on the defendant was for his own consumption. Therefore, reducing the amount of 9.41 grammes of “Ice” by one-third would give us, as Mr Mitchell had submitted, 6.26 grammes of “Ice”, which would be 14.76 grammes, in total, of “Ice”.

Now I have considered that the self-consumption I would reduce give the discount of 6 months because the defendant, being unemployed, would be tempted to not only consume the amount he has, but may be tempted to sell it as well, so I would reduce it, the starting point, to 7 years. I will not add anything for any aggravating factor, in view of the circumstances, and I will therefore give the defendant one-third deduction from the 7 years, and so he is to go to jail for 4 years and 8 months.