HKSAR v. YIM CHUN PONG

DCCC 673/2018

[2020] HKDC 513

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 673 OF 2018

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REASONS FOR SENTENCE (D2)

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1.  The defendant (D2 in this case) has pleaded guilty to a joint charge (Charge 2) in this case, namely, Trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  This case involves 40.30 grammes of a solid containing (3.06g) deschloro-N-ethyl-ketamine, 42.27 grammes of a powder containing 21.14 grammes of ketamine, and 0.19 grammes of a powder containing 0.04 gramme of ketamine and deschloro-N-ethyl-ketamine (d-N-e-ketamine).

3.  In other words, for the purpose of sentencing, the quantities of drugs in this case are 21.18 grammes of ketamine and 3.06 grammes of d-N-e-ketamine.

The Facts

4.  The police carried out an anti-drugs operation on 29 December 2017 in Yuen Long and at a later stage had intercepted a male for enquiry.  As a result, a key was found on this male and with that key, the police were able to identify a sub-divided flat in Kau Yuk Road, Yuen Long (the location particularized in the charge) and later at around 0250 hours on 30 December 2017, they gained entry into this flat for investigation on the strength of a search warrant.

5.  A few bags were seen on top of a desk in the flat.  They were examined and confirmed to be those subject dangerous drugs in Charge 2.  In details they are as follows:-

(a) 1 plastic bag containing 26 plastic bags altogether containing a total of 12.9 grammes of a powder containing 7.53 grammes of ketamine (“E3(1)”);

(b) 1 plastic bag containing 5 plastic bags (2 of which were contained within one other plastic bag) altogether containing a total of 1.58 grammes of a powder containing 0.84 grammes of ketamine (“E3(2)”);

(c) 1 plastic bag containing 14.0 grammes of a powder containing 7.39 grammes of ketamine (“E3(3)”);

(d) 1 plastic bag containing 14 plastic bags altogether containing a total of 6.49 grammes of a powder containing 3.33 grammes of ketamine (“E3(4)”);

(e) 1 plastic bag containing 10 plastic bags altogether containing a total of 7.30 grammes of a powder containing 2.05 grammes of ketamine (“E3(5)”);

(f) 3 plastic bags altogether containing a total of 40.3 grammes of a solid containing 3.06 grammes of deschloro-N-ethyl-ketamine; (“E4”) referred to as “O-PCE”;

(g) 1 electric blender containing a total of 0.19 grammes of a powder containing (i) 0.04 grammes of ketamine; and (ii) deschloro-N-ethyl-ketamine. (“E5”)

6.  There were also other items found and seized which include:-

(a) 3 gloves;

(b) 4 socks;

(c) Some tissues;

(d) 2 plastic bottles;

(e) 1 razor;

(f) 1 sheet of paper with Chinese writing found in the ketamine package with the words “俊 26 translated as (Chun 26)”.

7.  The street value of the 42.27 grammes of ketamine was estimated to be about $30,688.

8.  The DNA of the defendant was found on the following seized items:-

(a) the surface of 2 plastic bags [ie E3(2) and E3(4)] containing ketamine;

(b) the surface of the 3 plastic bags containing E4;

(c) the inside surfaces of 3 socks;

(d) the surfaces of some tissues;

(e) the inside surfaces of a glove;

(f) the inside surfaces of the screw caps and the openings of two plastic bottles; and

(g) the razor head of a razor.

9.  The defendant was arrested on 7 July 2018 in a random street check in Yuen Long.  Upon arrest and under caution for the subject offence, the defendant commented that he knew for what reason he was arrested.

10.  Based on the DNA evidence, the quantity of drugs and the circumstances of the discovery of the relevant items, the defendant was in possession of the subject drugs for the purpose of trafficking.

The Mitigation

11.  The defendant is now 33 years old.  He was a transportation worker before the current remand.  He has a 10-year-old daughter who is now living in Macau with his divorced wife.

12.  The defendant has two previous convictions: one offence of possession of dangerous drugs in 2007 and the other a trafficking offence in dangerous drugs in 2016 for which he was sentenced to 3 years.

13.  In mitigation, I was told that the defendant had been cooperative during the investigation.  He needed money at the material time but he is now remorseful and regrets about his misdeed.

14.  In passing the sentence, I have carefully considered the submissions of counsel for the defence.  The case took place more than two years ago and the defendant has been remanded for almost 2 years since his arrest in July 2018. 

15.  I also note that it is confirmed that there is no mitigation of self-consumption.

The Sentence

16.  According to the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, 10-50 grammes of ketamine fall within the band of 4 to 6 years’ imprisonment.

17.  In the present case, the defendant trafficked in 21.18 grammes and 3.06 grammes of ketamine and d-N-e ketamine.  The total quantity would become 24.24 grammes.

18.  In the case of HKSAR v Ng Tsz-ching HCCC 54/2019, [2002] HKCFI 257, Barnes J remarked that “While the toxicity and the adverse effect of the d-N-e ketamine being more serious than ketamine may well justify an upward adjustment of the appropriate starting point…”.

19.  It was stated in HKSAR v Chan Tai-ming DCCC 174/2018, [2018] HKDC1341, (at paragraph 6) that “Dr. MAK Wing-lai, Tony, Consultant Chemical Pathologist of Hospital Authority Toxicology Reference Laboratory and the Chief of Service of the Department of Pathology and Deputy Hospital Chief Executive of the Princess Margaret Hospital, is of the opinion that the clinical effects of (d-N-e-ketamine) largely resemble those of ketamine. However, there are some significant differences. Studies showed that (d-N-e-ketamine) was associated with a remarkably higher incidence of impaired conscious level, neurological symptoms such as confusion, abnormal behaviour (in particular, convulsion), cardiovascular symptoms, and hypertension. All the above suggest that (d-N-e-ketamine) may lead to more severe neurological and cardiovascular toxicities compared with ketamine”. 

20.  That said, given the relatively small quantity of d-N-e ketamine in this case as compared with the quantity of the ketamine seized, I am prepared to combine the quantities of the drugs without imposing an upward adjustment and therefore the defendant will be sentenced on the basis that he had trafficked in 24.24 grammes of ketamine.

21.  Applying the tariff for ketamine to a quantity of 24.24 grammes, I shall adopt a starting point of 57 months’ imprisonment.  Taking into account all the circumstances in the present case, I do not see the need to take a higher starting point to reflect the previous convictions of the defendant. Nevertheless, the message must be clear: trafficking in dangerous drugs is a very serious offence.  

22.  The defendant is entitled to a one-third discount for his guilty plea and the starting point is reduced to 38 month’s imprisonment.

23.  There is no other valid ground to further reduce the sentence.

24.  For the above reasons, the defendant is sentenced to imprisonment for 38 months.