HKSAR v. MA CHEUK SHING

DCCC1375/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1375 OF 2011

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to two offences of trafficking in dangerous drugs, each contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. You admitted the brief facts and I convicted you.

2.  The facts were as follows. 

3.  At about 2128 hours on 21 October last, PW1 and PW2, two police officers, saw you loitering at Cheung Wang Estate Bus Depot, Tsing Yi.  They intercepted you and upon searching you found you were holding a transparent plastic bag containing white powder suspected to be ketamine in your right hand.  That was Exhibit 1.  Arrested and cautioned, you said, “Ah Sir, this packet of K-chai belongs to me.  I’m going to sell it to another person.”  In your possession you had $1,490. 

4.  At 2150 hours, the police searched your home at Room 405, Wang Yung House, Cheung Wang Estate in the presence of you and your mother.  35 resealable bags containing suspected ketamine and cocaine, Exhibits 2 to 5, 6 resealable bags, Exhibit 6, weighing scales, a lighter and a plastic box containing a spoon were found in your bedroom.  You were arrested again and cautioned, and you replied, “The Coke and K-chai belong to me.  I am thinking of selling them to earn a living.  Ah Sir, give me a chance.  I know I was wrong.”   

5.  In a subsequent video-recorded interview, you said, amongst other things, the following:

(1) The dangerous drugs were supplied by Ah Lung to you and you sold them.

(2) You weighed the packets of ketamine but not the cocaine. You kept them at your home. No one else knew of them.

(3) To sell the dangerous drugs, Ah Lung would call you with the details of the buyer, buyer’s phone number, amount and price. You then contacted the buyer directly.

(4) You were not yourself an addict. You knew that K-chai was ketamine but did not know the name of cocaine.

(5) The money found on you, except for $300 given to you by your mother, was the proceeds of drug dealing.

6.  Subsequent analysis showed the following:

(1) Exhibit 1 contained 1.31 grammes of powder containing 0.76 grammes of ketamine. This is Charge 1.

(2) Exhibit 2 contained 52.01 grammes of powder containing 29.51 grammes of ketamine.

(3) Exhibit 3 contained 0.51 grammes of solid containing 0.39 grammes of cocaine.

(4) Exhibit 4 contained 1.06 grammes of solid containing 0.84 grammes of cocaine.

(5) Exhibit 5 contained 2.5 grammes of solid containing 1.98 grammes of cocaine.

(6) Exhibit 6 had traces of ketamine.

(7) The total involved in the 2nd charge was 29.51 grammes of ketamine and 3.21 grammes of cocaine.

7.  The total market price of the drugs was $10,156.32. 

8.  You are a youth of clear record.  Given that clear record and your youth, I adjourned the case for the preparation of a probation officer’s background report, which is now before me. 

9.  Mr Au on your behalf told me that you accepted the contents of that report and by way of written submission, which he read to the court, he placed the following mitigation before me.  

10.  At the time of the commission of these offences, you were 16 years of age.  You were single, residing with your parents and educated to Form 3.  You immigrated to Hong Kong in 2002 at age 9 from the Mainland.  Your behaviour at Primary School was acceptable but this deteriorated in Secondary School as you lost interest in your work.  After leaving school in Form 3, you worked briefly as a cook but quit after suffering a minor injury. Mr Au reminded me that you have a clear record.  You were not a drug addict and had no triad affiliations. 

11.  Rather bizarrely, you committed the offences as a good friend borrowed money from one Ah Lung and defaulted on repayment.  For reasons that only you know, you took responsibility for that debt as Ah Lung was threatening your friend.  You then assisted Ah Lung in trafficking.  You received little reward as what you would have received mainly went towards your friend’s debt.            

12.  I was presented with a number of letters of support, which I have considered and read.  Also, mention was made of your service to the community.   

13.  The total amount of dangerous drugs encompassing both charges was just over 30 grammes of ketamine and 3.2 grammes of cocaine. Very properly and reasonably, Mr Au urged me to adopt a combined approach and apply the principle of totality. 

14.  In conclusion, he said you pleaded guilty at an early stage and had been cooperative with the police upon arrest. 

15.  I turn now to the actual sentences.  Trafficking in dangerous drugs is always a serious matter.  These offences involve a substantial amount of ketamine and a lesser amount of cocaine.  The separate amounts of the individual drugs that fall for the ketamine within the range of 4 to 6 years’ imprisonment, and for the cocaine, 2 to 5 years’ imprisonment. Translating these to the individual amounts, this would mean that for the offence involving the ketamine, approximately 5 years’ imprisonment, and for the offence involving the cocaine, approximately 3 years’ imprisonment.    

16.  The prime mitigation, of course, in this case is your plea of guilty, also your cooperation with the police, and, to a lesser extent, your clear record and your relative youth. 

17.  The probation officer’s background report at best can be described as fair.  I do make allowance for the mitigation and I do apply the principle of totality. 

18.  On Charge 1, I take a starting point of 2 years’ imprisonment, reduced to 16 months for your plea of guilty.

19.  On Charge 2, I take a starting point of 6 years’ imprisonment, reduced to 4 years for your plea of guilty.

20.  These sentences will be served concurrently. That means you will go to prison for a period of 4 years.

21.  Finally, I would like to thank both counsel for their assistance.