HKSAR v. SO TSZ CHUN AND ANOTHER

DCCC 532/2024

[2025] HKDC 560

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 532 OF 2024

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REASONS FOR SENTENCE

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1.  This case involves 2 defendants (D1 & D2). D1 pleads guilty to a charge of possession of dangerous drugs, which involves 0.39 gramme of ketamine.

2.  D2 pleads guilty to two counts of trafficking in dangerous drugs (Count 1 and Count 3), the former involves the same 0.39 gramme of ketamine and the latter involves 16.67 grammes of ketamine.

3.  The set of Summary of Facts reveals the followings.

4.  In the afternoon on 30 January 2024, a team of plain clothes police officers carried out an anti-narcotics operation in the vicinity of Aberdeen Centre, Aberdeen, Hong Kong.

5.  At around 2:02 p.m. on the same day, one of them (PW1)  saw D1 constantly looking around outside Site 5 of Aberdeen Centre.  Finding his conduct suspicious, D1 was kept under observation.

6.  Soon, D2 walked out from a restaurant nearby and approached D1.  PW1 saw D1 and D2 exchanging something and D1 placing an unknown item in the waistband of his trousers afterwards.  D2 thereafter returned to the Restaurant.

7.  Immediately after that, D1 was intercepted by PW1.  Inside the waistband of D1’s trousers were found a piece of paper as well as a piece of tissue paper wrapping a transparent resealable plastic bag containing 0.46 gramme of a solid containing 0.39 gramme of ketamine (‘Exhibit 1’).

8.  D1 was then arrested for the offence of ‘possession of a dangerous drug’ in respect of Exhibit 1 (Charge 2).  Under caution, D1 further admitted that “the bag of stuff” was ketamine and he paid HK$400 in cash for it as witnessed by PW1.

9.  On the other hand, shortly after the arrest of D1 , D2 was also arrested for the offence of ‘trafficking in a dangerous drug’ in respect of Exhibit 1. Under caution, D2 admitted delivering ‘the stuff’ to others to earn a living and asked for a chance (Charge 1).

10.  A body search was conducted on him and a mobile phone and cash of HK$2,770 were found.

11.  A house search was conducted at D2’s residence.  Inside the wardrobe in one of the bedrooms, the police found a brown box containing:-

(a)  A transparent resealable plastic bag containing:-

(i)  A transparent resealable plastic bag containing 12 transparent resealable plastic bags containing a total of 3.58 grammes of a solid containing 0.86 gramme of ketamine (‘Exhibit 2’);

(ii)  A transparent resealable plastic bag containing 12 transparent resealable plastic bags containing a total of 7.14 grammes of a solid containing 5.97 grammes of ketamine (‘Exhibit 3’);

(iii)  A transparent resealable plastic bag containing 12 transparent resealable plastic bags containing a total of 7.31 grammes of a solid containing 4.94 gramme of ketamine (‘Exhibit 4’);

(iv)  A transparent resealable plastic bag containing 11 transparent resealable plastic bags containing a total of 6.32 grammes of a solid containing 4.90 grammes of ketamine (‘Exhibit 5’); and

(b)  A transparent resealable plastic bag containing 4 empty transparent resealable plastic bags.

12.  D2 was then further arrested for the offence of ‘trafficking in a dangerous drug’ in respect of Exhibits 2-5 (Charge 3).

13.  During the two cautioned video-recorded interviews with D2 on the same day, D2 admitted, inter alia, that:-

(a)  He worked at a fish stall earning an unstable income ranging from HK$30,000 to HK$50,000 per month;

(b)  He owned Exhibits 2-5;

(c)  He had purchased Exhibits 2-5 from a male known as ‘Cousin’ to relieve stress;

(d)  He paid HK$6,500 for the drugs, which would last him a few months;

(e)  On 30 January 2024, a man known to him as ‘Single Eye Man’ called him and asked if he had any drugs. When he replied in the affirmative, ‘Single Eye Man’ requested to buy some from him. He later handed over a packet of ketamine, being Exhibit 1, to ‘Single Eye Man’ at Aberdeen;

(f)  He had to sell drugs to others to earn a living.

14.  A Government Chemist, confirmed the narcotic contents of Exhibits 1-5.  The estimated retail price of Exhibit 1 was HK$253.92 in January 2024.  The total estimated retail price of Exhibits 2-5 was around HK$13,441.20 in January 2024.

15.  Based on the above, D1 and D2 are convicted of the charges. 

16.  In mitigation, D1 reveals that he started to abuse ketamine back in 2007.  According to the DATC Report, he ceased this bad habit for a number of years but began to take it again in 2023.  Regrettably, he only stopped again in October 2024, that is after the current offence.  Nevertheless, it is suggested by the Defence that D1 had isolated himself for a considerable period of time with a view to “kicking his ketamine addiction”.  It seems that he had managed to do so this time, when the DATC Report also confirms that he is no longer a drug dependent and does not recommend a detention order.

17.  D1 had never been ordered to serve any sentence in a Drug Addiction Treatment Centre.  His previous related conviction was over 17 years ago for which he received a fine.

18.  The Defence properly refers to the case of HKSAR v Mo Cho Tik [2001] 1 HKC 261 and notes the normal starting point of 12 to 18 months’ imprisonment.

19.  Nonetheless, this Court is also referred to other cases where an accused received a punishment significantly lesser than 12 months.

20.  Having considered all the circumstances, I shall adopt a starting point of 6 months’ imprisonment in the present case.  D1 demonstrated real and more than significant remorse.  He took the initiative to terminate his reliance on ketamine.  I also see positive comments in the DATC Report which are consistent with the mitigations done by counsel for D1.

21.  The starting point is reduced to 4 months to reflect the guilty plea and I shall order that a further reduction of one-month be given to reflect his mitigations.  I see no room for further reduction.  I also do not see it appropriate to suspend the sentence.  D1 is sentenced to 3 months’ imprisonment accordingly.

22.  For D2, he had a clear criminal record.  He was able to earn HK$40,000 per month prior to his arrest.  He needed to earn a living for himself, his wife and their very young son.

23.  D2 accepts that he “would sell the drugs if he could, especially at times when he had more than he could consume” (para. 15, D2’s amended written submission).

24.  D2 further accepts that “D2 is also aware the majority of the drugs seized will be considered for sale, and he could only at most claim a small quantity among the drugs seized as solely for his consumption (para. 15 D2’s original written submission, para. 17 D2’s amended written submission).  In his revised written submission, D2 remarked that “he could not prove sufficiently that a substantial proportion of the drugs seized were for his own consumption.

25.  It is stressed however that D2 is extremely remorseful.

26.  Counsel for the Defence properly refers to the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186 and invites this Court to consider the totality principle.

27.  This Court refers parties to address the case authority of HKSAR v Cheung Wai Man [2019] 1 HKLRD 817 (para. 23 D2’s amended written submission)  and invites them to make further submission.  In short, D2 elects not to give evidence.  And as mentioned above, D2 has made the remark as a result.

28.  Having carefully considered all the relevant factors[1], this Court agrees with the Defence that a global starting point for 17.06 grammes of ketamine should be roughly 4 years and 4 months (i.e. 52 months).

29.  However, as a matter of law, it is wrong to forget to impose an individual starting point and ultimate individual sentence on the charges before the Court.  As this Court had explained at length in 香港特別行政區訴葉家明 DCCC 56/2023 [2024] HKDC 2155 (paras. 18-20), a global sentence is wrong in principle (see HKSAR v Wong Chor Wo CACC  314/2006).

30.  I shall adopt a 18-month starting point for Charge 1 and 4 years and 4 months for Charge 3.  It is noteworthy that, should there be any reduction to sentence on the basis that there is an element of self-consumption, it reduces the sentence on Charge 3 but not that on Charge 1 because the facts of the case clearly supports that the dangerous drugs in Charge 1 was not for D2’s own consumption.

31.  This again shows the importance of giving an individual sentence and how problem might arise should a mere global approach is adopted.

32.  Further, I do not accept that a reduction of sentence is warranted when only “a small amount of drugs”, as put by counsel for the Defence, is said to be so.  It ignores the legal principle that only a significant portion could justify such a reduction and also fails to address the concerns raised in the case of Cheung Wai Man.  As a matter of law, it remains within my discretionary power to reduce the sentence on that basic in suitable cases. Nevertheless, on the strength of what is available before me, this Court is not prepared to exercise the power in favour of D2 in this regard.

33.  However, this Court is prepared to impose a concurrent sentence and as a matter of course, a 1/3 discount should be given in this case.

34.  This Court does not see the need to enhance the sentence on the basis that D2 had sold a quantity of drugs to another person at a material time.  In light of the overall sentence, and the facts in this case, it is sufficient to work merely on the 52-month in order to arrive at an appropriate and just ultimate sentence.

35.  Whilst this Court does not accept that the general background of the defendant warrants further reduction, this Court is prepared to be more lenient to this defendant to reflect his previous clear record and his mitigations.

36.  The starting points are reduced to 12 months for Charge 1 and 34 months for Charge 3 to take into account the notion of 1/3 discount.

37.  These sentences are made concurrent, and the 34 months is further reduced to 33 months for the other mitigations.  Therefore, the sentence for Charge 1 becomes 11 months’ imprisonment.

38.  This Court does not see any room for further reduction.  D2 is sentenced to 11 months’ and 33 months’ imprisonment, to be served concurrently.