HKSAR v. XU JINYE

DCCC 881/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.881 OF 2013

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Reasons for Sentence

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1. The defendant pleaded guilty to one charge of trafficking in dangerous drugs. Particulars of the charge are that the defendant on 29^th July 2013 at Customs Clearance Cubicle No.5, Customs Arrival Hall, Lok Ma Chau Control Point unlawfully trafficked in 14.02g of a powder containing 10.96g of ketamine.

Summary of facts

2. The defendant was intercepted at about 4:52pm on 29^th July 2013 when she and her 6 year old son walked through the Green Channel at the Customs Arrival Hall. A search was conducted and a plastic bottle containing white crystalline solid was found inside the defendant’s handbag. A piece of paper wrapped into a packet containing white powder was also found inside the defendant’s mobile phone protective case.

3. The defendant was asked what those white powder were and she answered that they were “K”. The defendant was arrested and cautioned. In a subsequent cautioned interview, the defendant claimed that she brought the ketamine back from Shenzhen after buying it for $700 from a mainland female. The defendant alleged that the ketamine was for self-consumption. She would sniff ketamine about once or twice a week. The defendant said she was unemployed.

4. At the time of arrest, the defendant had cash of $197.60 and RMB$134.70 and 2 mobile phones in her possession.

5. Examination by Government Chemist of the powder found on the defendant confirmed that they have a total narcotic content of 10.96g of ketamine. The estimated street value was about $1,381.

6. The defendant admitted at paragraph 9 of the summary of facts that she possessed the ketamine for the purpose of trafficking at all material times.

Previous Convictions

7. The defendant is of previously clear record.

Mitigation

8. The defendant is 27 years old. She got married in 2006 when she was 20 years old. She gave birth to a son in 2007. The defendant found out her husband was having an affair which led to her divorce in 2011.

9. The defendant started using ketamine when she was 17, but stopped after she got married and got pregnant. She relapsed because of the broken marriage. The defendant came from mainland China where all her friends and family are. The defendant is practically alone in Hong Kong, looking after her young son. She felt stressed and lonely and that was why she relapsed to taking ketamine to relieve her stress.

10. The defendant worked as part time sales but mainly supported by maintenance payment of her husband. At the time of the offence, the defendant went back to Chiu Chow to visit her family together with her son. Before she came back to Hong Kong she stopped by a friend’s home in Shenzhen. On that day she went to some night club and that’s where she bought the drugs.

11. The defendant has been taking ketamine since she discovered her husband was having an affair and she took it whenever she felt unhappy. The drug she bought this time would be enough for 4 to 5 consumptions.

Sentencing Tariff

12. The applicable sentencing guidelines for trafficking in ketamine is found in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006. The sentence after trial for trafficking between 10 to 50 grammes of ketamine is between 4 to 6 years’ imprisonment. The amount of narcotic contents involved in our present case is that of 10.96g of Ketamine.

Self-consumption

13. Ms. Siu for the defendant referred to the cases of HKSAR v Chow Kam Lung, CACC68/2010; Secretary for Justice v Chan Chun Fai, CAAR 11/2010; HKSAR v Chow Chun Sang, CACC 135/2011; and HKSAR v Mak Wai Ming, CACC424/2010 to urge the court to consider a further discount to the defendant’s sentence on the basis that the drugs being imported into Hong Kong were wholly for the defendant’s self-consumption.

14. Ms. Tam for the prosecution does not dispute that there can be such a further discount.

15. Both Ms. Siu and Ms. Tam agreed with the observation of the Court of Appeal in the case of HKAR v Ngai Ho Ting, CACC 417/2011 that,

“46. The extent to which an appropriate starting point can be discounted to allow for self-consumption is a fact sensitive issue which does not lend itself to mathematical precision. It must inevitably vary from case to case depending on the circumstances of the offence and of the offender.”

16. Having said that, Ms. Siu for the defendant confirmed that the previous range of reduction in sentence in the cases cited by Ms. Siu was between 10% to 25% of discount in addition to the one-third discount for the guilty plea.

Sentence

17. The maximum sentence for trafficking in dangerous drugs is that of life imprisonment.

18. In sentencing the defendant in our present case, I find that there is nothing to rebut the defendant’s assertion that the ketamine she had brought in were wholly for her own consumption, and I do sentence the defendant on that basis.

19. For 10.96g of ketamine, I first of all adopt the guideline starting point of 4 years’ imprisonment, discounting it by one-third to that of 32 months’ imprisonment in recognition of the defendant’s guilty plea.

20. I then take into consideration the fact that the drugs were for the defendant’s self-consumption, the defendant’s clear record and the fact that she does not appear to be a heavy abuser of dangerous drugs, and the 6 year old son who will be missing his mother. On the other hand, I also take into consideration that importation of a dangerous drug is a serious offence and must be deterred.

21. Balancing all the factors, I find that it is appropriate for a further reduction of 25% in the defendant’s sentence, which is equal to 8 months, and I sentence the defendant to 24 months’ imprisonment.