HKSAR v. ZHENG XIN

DCCC 779/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 779 OF 2015

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty before me to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The subject matter of the dangerous drug is 11.80 grammes of a solid containing 6.96 grammes of ketamine.

Facts

3.  The is a simple stop and search case.  The defendant was intercepted when he was trying to enter into Hong Kong at the Customs Arrival Hall, Hong Kong-Macau Ferry Terminal, Sheung Wan, Hong Kong.

4.  On 26 July 2015 at around 8:10 pm, the defendant was stopped and searched in the presence of a senior custom officer.  During the search, one transparent plastic bag containing the subject matter of the dangerous drugs was seized from the underwear of the defendant.

5.  The total estimated value of the dangerous drug is around HK$1,722.80.

6.  The defendant was immediately arrested and cautioned.  Under caution at the scene, the defendant confessed that the dangerous drug in question was ketamine and was for his self-consumption.  In a subsequent cautioned interview, the defendant further said that on the date of arrest, he was travelling from Hong Kong to Macau.  However, he lost his Travel Permit and was refused entry into Macau.  He was therefore required to return to Hong Kong but he was also refused entry into Hong Kong by the Immigration Department hence he was intercepted and searched.

7.  The defendant knew that what he was carrying was dangerous drug which he purchased in Fujian in the sum of RMB1,200.  According to the defendant, the ketamine was enough for his half-month’s consumption.  He brought the ketamine with him as he planned a 6-7 days trip to visit his friends in Hong Kong, Macau and Zhuhai.

Criminal record and background of the defendant

8.  The defendant is a mainland citizen and is now aged 31.  He is single and has completed diploma education in mainland China.  He claimed that he was a merchandiser for building materials in the mainland and he earned about RMB9,000 per month.

9.  He has no criminal record in Hong Kong.

Mitigation

10.  It was submitted on behalf of the defendant that the defendant possessed the drug entirely for his own consumption which claim was entirely accepted by the prosecution.

11.  A letter of mitigation written by the defendant was also submitted for my consideration.  In particular, the defendant drew the court’s attention to the fact that his mother is suffering from a brain tumour.  A medical report of the defendant’s mother was also submitted to support this claim.  The defendant urged the court to be as lenient as possible so that he can return to take care of his mother as soon as possible.

12.  The defendant told the police that he was addicted to ketamine and he used to take ketamine by way of sniffing 5-6 times per day.  The defendant also claimed that he would take around 0.05 gramme of ketamine each time.

13.  It was also submitted that because of these special circumstances, and relying on the authorities of HKSAR v Chow Chun Sang CACC 135/2011 and also HKSAR v Ng Kwok Kin CACC 164/2012, because of the defendant’s plea of guilty and also the fact that all the quantity of drugs in question was for his own consumption, a proper discount in this case should be 50% from the starting point.

14.  Also, because of the fact that the defendant was previously of no criminal record, it was also urged that perhaps the court can exercise the discretion to consider further reducing the sentence in the region of 2 to 3 months.

Sentencing considerations

15.  Trafficking in dangerous drugs is of course a serious offence.  The maximum sentence is life imprisonment and in District Court, the maximum sentence is 7 years’ imprisonment.  Anyone who was caught and was convicted of this offence will expect generally no mercy from the court.

16.  In this case, however, as claimed by the defendant, which was accepted by the prosecution, the dangerous drugs in question was entirely possessed by the defendant at the time of the offence for his self-consumption.

17.  In Chow Chun Sang, the Court of Appeal had said that when a drug trafficker intends to possess the drugs entirely or to a large extent for his own consumption, this is a mitigating factor which entitles a reduction from the basic starting point in the region of 10% to 25%.  The level of reduction will depend on the facts of different case.

18.  In this case, the defendant’s claim that the whole quantity of the ketamine was for his self-consumption during his trip to Hong Kong, Macau and Zhuhai has been accepted by the prosecution.  Therefore, according to the authorities, I will consider a considerable reduction in the sentence.

19.  Also in Ng Kwok Kin, which the defence relied, the Court of Appeal referred to the case of HKSAR v Chow Kam Lung [2010] 4 HKLRD 253, in which it was held  that because of the fact that all of the quantity of the dangerous drugs was for the defendant’s own consumption, and because the defendant had pleaded guilty, for these two reasons, the total discount should be 50% from the starting point.

20.  I therefore apply the same decision by the Court of Appeal.

21.  In SJ v Hii Siew Cheng [2008] 3 HKC 323, according to the Court of Appeal, trafficking between 1 and 10 gramme of ketamine, the starting point should be 2 to 4 years.

22.  The present quantity is 6.96 grammes.  The proper starting point should therefore be 3 years and 3 months.

23.  As I have decided that 50% should be deducted from this starting point because of the defendant’s plea and the fact that all the quantity were for his own consumption, the resulting sentence is therefore 19½ months’ imprisonment.

24.  In drug trafficking cases, normally, family circumstances virtually play no part in mitigation.  If the defendant is genuinely caring for his mother, he should think twice before committing any offence, especially serious offence involving drugs.

25.  However, the defendant has a clear record.  In the end, I will exercise my discretion and further reduce the sentence by 2½ months.

26.  The final sentence is therefore 17 months’ imprisonment.