HKSAR v. CHOW UE

DCCC 1021/2021

[2022] HKDC 1486

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1021 OF 2021

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REASONS FOR SENTENCE

1.  The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs". The dangerous drugs involved were ketamine, methamphetamine hydrochloride (commonly known as "ICE") and cocaine.

Summary of Facts

2.  About 2:10 a.m. on 6 June 2021, during an anti-drink driving police operation, a private car XE3604 ("the Car") was stopped for inspection at the junction of Fuk To Street and Kwun Tong Road in Ngau Tau Kok.  The defendant was in the front passenger seat of the Car; whereas another male was in the driver's seat ("the Driver").  The Car was searched and the following items were found :-

In the front passenger seat glovebox:

(i) 27 resealable plastic bags which contained a total of 18.3 grammes of a solid containing 15.8 grammes of ketamine (collectively E1);

(ii) 1 resealable plastic bag which contained 0.41 gramme of a crystalline solid containing 0.41 gramme of methamphetamine hydrochloride (E2);

(iii) 7 resealable plastic bags which contained a total of 19.0 grammes of a solid containing 16.5 grammes of ketamine (collectively E3);

(iv) 69 resealable plastic bags which contained a total of 9.89 grammes of a solid containing 7.62 grammes of cocaine (collectively E4);

(v) 5 mobile phones;

In the front trunk:

(vi) 1 electronic scale; and

(vii) 97 resealable plastic bags (of different sizes).

3.  The defendant was arrested.  He remained silent at the scene.  In his video recorded interview, the defendant admitted that he had purchased some dangerous drugs at Chung King Mansion.  E1 to E3 were ketamine; whereas E4 was cocaine. All the dangerous drugs seized from the Car were for his own consumption.  The defendant claimed that he had asked the Driver, who is a friend, to take him on a ride that evening. 

4.  The defendant's DNA was found on the steering wheel and the front passenger seat glovebox of the Car.  The estimated street value of E1 to E4 in the month of February 2021 was $33,044.

5.  The defendant now admits that he possessed E1 to E4 for the purpose of unlawful trafficking.

Mitigation & Sentence

6.  The defendant is 36 and has 5 conviction records which included 3 "simple possession" offences and 1 "trafficking" offence.  Defence counsel Ms. Tsang informed me that the defendant is single and is currently unemployed.  His last criminal conviction is dated May 2017.

7.  Drug abuse has been a long-term problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment, so that there is a deterrent effect.

8.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see SJ v Hii Siew Cheng [2009] 1 HKLRD 1) and cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak Ming & others [1990] 2 HKLR 370).  For 10 to 50 grammes of ketamine, the sentence ranges from 4 to 6 years' imprisonment.  For up to 10 grammes of cocaine, it ranges from 2 to 5 years' imprisonment.

9.  In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v Yip Wai Yin & another CACC 80/2003 and HKSAR v Cheng Yat Ming CACC 455/2006.

10.  In the present case, the defendant trafficked in a cocktail of drugs consisting of 32.3 grammes of ketamine and 7.62 grammes of cocaine.  For the purpose of sentencing, I am prepared to ignore the 0.41 gramme of ICE.  For 32.3 grammes of ketamine, applying a strict arithmetical approach, the appropriate starting point is 61 months' imprisonment.  For 7.62 grammes of cocaine, applying a strict arithmetical approach, the appropriate starting point is 51 months' imprisonment.  I consider the "combined approach" would arrive at a realistic and fair sentence. 

11.  Although less potent than cocaine, the ketamine found in this case is in a significantly larger quantity.  I decided that the quantity of ketamine shall form the basis of the starting point[1]. Hence, I adopt a starting point of 61 months' imprisonment and adjust it upward by 14 months for the cocaine, arriving at 75 months.

12.  Regarding the defendant's claim for self-consumption, I have reminded myself of the relevant sentencing principles[2]. Ms. Tsang submitted that the single packet of ICE (E2) and the 7 packets of ketamine (E3) were for the defendant's self-consumption.  Prosecuting  counsel  Ms.

Yeung accepted that the defendant could be a user of cocaine and/or ICE, but pointed out that there is no evidence of the defendant's abuse of ketamine. I note the defendant's urine test report shows that his urine sample collected on 9 June 2021 (3 days after his arrest) was ICE positive only. But I am aware that the admission urine test at Lai Chi Kok Reception Centre does not cover ketamine. Ms. Tsang submitted that E3 was clearly separated from the majority of ketamine found[3]. Having considered all relevant matters, I am prepared to reduce the starting point to 67 months[4] to reflect the discount for self-consumption.

13.  With the timely guilty plea and other special mitigating factors, the sentence is reduced to 42 months[5].  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 42 months' imprisonment.