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DCCC 176/2019
[2019] HKDC 1313
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 176 OF 2019
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| Present: |
Ms Choice Choi, Counsel on fiat, for HKSAR |
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Ms Lee Po-yee, Polly of Messrs. John Ho & Tsui, for the defendant |
| Offence: |
Trafficking in a dangerous drug(販運危險藥物) |
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REASONS FOR SENTENCE
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1. This is a case of stop and search in the street by police leading to the discovery of drugs.
2. In the afternoon on 3 December 2018, police officers stopped the defendant in Shantung Street, Mong Kok, for a search and found from his bag the drugs in this case. The drugs are 20g of a solid containing 17.3g Ketamine which are put in 2 plastic bags. There are another two plastic bags with traces of Ketamine.
3. The defendant told the officers that he received $500 to help others bring the K to Sai Wan Ho.
4. The drugs were subsequently examined by the government chemist who confirmed that it was Ketamine (20g of a solid containing 17.3g Ketamine) and its estimated street value was $8,080.
5. The defendant pleaded guilty before me to one count of drug trafficking.
6. The defendant, 34, single, lives with a friend in Shamshuipo. At the time of the offence, he worked as a maintenance technician earning around $15,000 a month. He has another source of income in that he owns a rented property, after deducting the mortgage payments, he gets about $5,000 a month from the rent.
7. He is no stranger to the law, he has 5 previous convictions - all drug-related, 4 possessions and one trafficking - his first conviction is possession back in 2008, and his last one is drug trafficking two years ago for which he was sent to prison for 3 years. He repeated the same offence only 4 months after being discharged from the prison.
8. Counsel for the defendant, Miss Polly Lee, told the court that the defendant had been abusing Ketamine since 2008 and his daily dosage was about 1 to 2 grammes a day.
9. Miss Lee submitted that the smaller bag (7.14g of Ketamine) of the two was for the defendant’s personal use on the grounds that he was a longtime Ketamine abuser. Though he did not tell the police at the scene, he did say so in the subsequent police interview.
10. Regarding the two bags with traces of Ketamine, Miss Lee said that the defendant had just consumed those drugs in the bag; as to why the urine test of the defendant showing negative instead, she explained that the test was done 3 days after the defendant being taken into custody – there would be nothing left in his system.
11. I have indicated to Miss Lee that on the information before the court, unless there is further evidence, I am not prepared to accept part-consumption, but Miss Lee told the court that there would not be any evidence from the defence.
12. Just a moment before the court was about to announce the sentence, Miss Lee made an application for adjournment to have the defendant’s hair examined in order to prove that he is a drug user and therefore one-third of the drugs seized is for personal use. Such application was refused.
13. I think Miss Lee has a misconception that whenever a drug addict engages in drug trafficking activities, and because of his drug habit, then there bound to be a portion of the drugs for his personal use. This statement is not always true.
14. Whether or not a portion of the drugs is for personal use has to be looked at individually; every case depends on its own facts. The claim of part-consumption would have to be tested perhaps by way of cross-examination.
15. In the instant case, for example, the defendant when being questioned at the scene, said that he was paid to deliver the drugs to others in Sai Wan Ho – he must be referring to the whole of the drugs. Later in the police interview, however, he changed to say part of the drugs was for his own consumption. Such inconsistencies need an explanation.
16. Furthermore, it is counterintuitive that a drug trafficker, when engaging in drug trafficking activities, would bring along that portion of drugs he would use by himself, because he must know of the risk that when he ever runs into any law enforcement officers, he would likely be charged with trafficking in the whole lot. In so doing, he has everything to lose but nothing to gain. Again, this requires an explanation.
17. In the absence of any plausible explanations from the defence, it would be hard for the court to accept the defendant’s claim for part-consumption.
18. In his letter to the court, the defendant expressed remorse for what he had done, realized the harm that drugs could bring to the society, and promised to stay away from drugs in the future. His employer has also written to plead leniency on his behalf.
19. There are sentencing guidelines for this type of offence – for the amount (17.3g) the defendant admitted trafficking, the applicable tariff is – for trafficking between 10g-50g, 4 to 6 years.
20. For the amount of 17.3g, I take 4 years and 3 months as the starting point. As far as his mitigation is concerned, apart from his guilty plea there is not anything of substance. There being no other reasons for a further reduction, and having deducted a third for his plea, the resulting sentence is one of 34 months’ imprisonment.
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