HKSAR v. LI SHU KEUNG

DCCC 1199/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1199 OF 2010

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of possession of 0.38 gramme of a powder containing 0.26 gramme of ketamine and one charge of trafficking in 57.41 grammes of a powder containing 35.22 grammes of ketamine, contrary to sections 4 and 8 of the Dangerous Drugs Ordinance, Chapter 134.

2.  In summary at about 01.14 hours on the 21st August this year the defendant was stopped at the Green Channel of the Customs Arrival Hall, Lok Ma Chau Control Point.  The ketamine subject of the possession charge was found folded in a Macau bank note inside the defendant’s wallet and the ketamine subject of the trafficking charge was contained in 5 packets inside the defendant’s handbag.

3.  In the Secretary for Justice v HII Siew-cheng [2008] 3 HKC 325 the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years imprisonment. 

4.  In passing sentence I have carefully considered everything said on behalf of the defendant by Miss Tang together with the letters submitted to court.   The letter from chaplain John Wotherspoon asks that I allow the defendant to participate in a programme of community service.  I am satisfied the offence is too serious for the imposition of anything other than immediate imprisonment.

5.  I am told that the defendant has a long history of drug abuse but only started abusing ketamine in 2008, which he takes to relieve pain from stomach illness. At the time of arrest the defendant was consuming 2 grammes a day and says that all the ketamine was for his own consumption, which would have lasted him one month.  Further the defendant says he bought the drugs in China because they were cheaper than in Hong Kong.    

6.  Although the defendant has one previous conviction in 1994 for trafficking and the quantity and packaging are suggestive of trafficking I am prepared to accept on this occasion all the drugs were for his own consumption.  By laying one charge of possession the prosecution accept some of the drugs were for the defendant’s own consumption notwithstanding one charge of trafficking in all the drugs could have been preferred.  The defendant on arrest said the drugs were for his own consumption and he also has convictions for possession of drugs in 1994 and 1999.     

7.  In HKSAR v CHOW Kam-lung CACC 68/2010 a case concerning importation of drugs into Hong Kong, the Court of Appeal held that where the drugs were all for one’s own consumption this constituted a strong mitigating factor which should be taken into account.

8.  I am satisfied the proper starting point after trial for 35.22 grammes of ketamine is 5 years and 3 months imprisonment.  Giving the defendant full credit for his plea of guilty the sentence on charge 2 is reduced to 3 years and 6 months imprisonment.   Taking into account the drugs were for his own consumption I further reduce the sentence by       9 months imprisonment to 2 years and 9 months imprisonment.  For possession of ketamine I am satisfied the proper starting point after trial for charge 1 is 6 months imprisonment.  Full credit for his plea of guilty the sentence is reduced to 4 months imprisonment.  The possession charge does not increase the overall culpability of the defendant. Accordingly I order the two sentences to be served concurrently. 

9.  The defendant goes to prison for 2 years and 9 months.