HKSAR v. LO CHEUK KIT

 DCCC931/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 931 OF 2009

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The Defendant pleads guilty to one charge of trafficking in a dangerous drug, namely 12.52 grammes of a powder containing 10.06 grammes of ketamine.

2.  The Defendant was intercepted by the police in a road block in Tsim Sha Tsui at 0240 hours on 12 February 2009.  By that time the Defendant was a passenger in a private vehicle.  Finding the Defendant suspicious, the police conducted a search on the Defendant. 

3.  Upon search, the police officers found a packet of white powder at the waistband of the Defendant’s underwear.  Under caution, the Defendant admitted that the packet of powder was “K Chai”.  At around 2100 hours on the previous night, he bought the “K Chai” for $850 from an unknown male in Tai Po and he intended to share the “K Chai” with his friends in Club R Disco.

4.   The government chemist certified the white powder seized from the Defendant to be 12.52 grammes of a powder containing 10.06 grammes of ketamine. 

5.  The Defendant is aged 21.  He has a clear record.  He received education up to Form 3 level.  After completed schooling, he had a number of jobs.  At present, he was working as a transportation worker earning about $6,500 a month.  He is living with his father who mainly worked in the Mainland.  Both the father and the elder sisters of the Defendant are present in court to show their support for the Defendant.  I have also read the letter of mitigation written by them, the Defendant and his employer.

6.  This is a sad case as the court has to sentence a young man with a clear record.  However, trafficking in dangerous drugs is a serious offence as there is still a widespread abuse of ketamine among young persons in Hong Kong.  According to the established sentencing guideline as laid down in the case of The Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, trafficking of ketamine in the region of 10 grammes should attract a sentence in the region of 4 years’ imprisonment.

7.  I have taken into account the fact that the Defendant intended to consume part of the drug himself and to share part of it with his friends in the karaoke.  However, this should not disturb the starting point as trafficking of ketamine in the region of 1 to 10 grammes would still attract a sentence in the region of 2 to 4 years, and the sentence for possession of dangerous drugs, according to Stock JA in the case of HKSAR v Mok Cho Tik, should be in the region of 12 to 18 months.

8.  This is a case of social trafficking.  However, Stuart-Moore VP in the Hii Siew Cheng case, while approving the dicta of the Court of Appeal in the HKSAR v Wong Suet Hau, had already indicated that social trafficking should not generally be a mitigating factor as the danger of social trafficking is just as much as that of commercial trafficking.

9.  Finally, Mr Wong, counsel for the Defendant, asks me to consider the observation of Stuart-Moore JA in paragraph 99 of the judgment in Hii Siew Cheng, and I quote:

“In the unlikely event that an habitual abuser of ketamine or ecstasy or both, with no previous convictions for trafficking in dangerous drugs, is caught in the act of supplying a close acquaintance such as a boyfriend or girlfriend who is also a regular consumer of drugs, we can envisage that this might well give rise to circumstances where a non-custodial sentence would be justified.  However, care must be taken in regard to mitigation of this kind that regular traffickers, in order to avoid what in practice will be an inevitable sentence of imprisonment, do not succeed in availing themselves of mitigation along such lines.”

10.  In my judgment, that observation is not applicable in the present case.  The Defendant was a drug abuser himself and he was to share the drug with his friends in the karaoke.  The Defendant’s conduct would certainly encourage his friends to take the drug and the court should not overlook the harmful effect of the Defendant’s conduct. 

11.  Dealing with a young man with a clear record, the court always wants to treat the Defendant as leniently as possible.  However, clear record should not carry much weight in this kind of serious offence.  There is also clear established sentencing guideline and the court must also send a clear message that trafficking of ketamine, in particular supplying such kind of drug to young persons, is a very serious offence. 

12.  Based on the aforesaid, I will adopt the starting point of 4 years’ imprisonment.  Giving the Defendant one-third discount for his plea of guilty, the sentence is reduced to 32 months’ imprisonment.  And this is the sentence I impose in the present case.