HKSAR v. KWAN KING CHUNG AND ANOTHER

DCCC 544/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 544 OF 2017

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REASONS FOR SENTENCE

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1.  D1 pleaded guilty to a charge of trafficking dangerous drugs and a charge of possession of dangerous drugs.  D2 pleaded guilty to a count of possession of dangerous drugs.

SUMMARY OF FACTS

2.  At around 2.20 am on 3 March 2017, two policemen spotted the two defendants sitting inside a stationary private car.  D1 was in the driver’s seat; D2 was in the front passenger seat.  They were both staring forward unresponsively.

3.  Upon search inside the storage compartment between the driver’s seat and the front passenger seat of the car:

(a) one transparent resealable plastic bag containing 0.62 grammes of a solid containing 0.32 grammes of ketamine; and

(b) one transparent resealable plastic bag containing traces of cocaine.

4.  The car belongs to D1.  He was arrested for possession of dangerous drugs.  Under caution he admitted that the drugs in the car were for his self-consumption. 

5.  In the chest pocket of D2’s jacket:

(a) one transparent resealable plastic bag containing 0.97 grammes of a solid containing 0.52 grammes of ketamine;

(b) a paper packet containing 0.16 grammes of a powder containing 0.10 grammes of ketamine;

(c) one $20 banknote containing traces of ketamine.

6.  D2 was arrested for possession of dangerous drugs.  Under caution he admitted that he bought the ketamine for self-consumption.

7.  At Sheung Shui Police Station, inside the inner side pocket of D1’s black jacket:-

(a) three plastic bags containing a total of 7.45 grammes of a powder containing 2.56 gramme of ketamine;

(b) eight plastic bags containing a total of 1.46 grammes of a solid containing 1.42 grammes of cocaine; and

(c) seven plastic bags containing a total of 18.7 grammes of a solid containing 10.80 grammes of ketamine.

8.  The estimate street value was HK$1,265.

9.  D1 was in possession of the drugs seized from his inner side pocket for the purpose of unlawful trafficking.  D1 also had cash of $48,675 and three mobile phones on him, while D2 had cash of $215 and two mobile phones on him.

PREVIOUS CONVICTION

D1

10.  He has two previous convictions, one in 2006 for trafficking in dangerous drugs.  He received a Training Centre order.  As in October 2016 he was sentenced to a period of 12 months for possession of dangerous drugs.

D2

11.  He has got five previous convictions from 2002 to 2010.  He was sentenced to 12 months’ probation order in 2009 for an offence of possession of dangerous drugs.

MITIGATION

D1

12.  He is now 30 years of age, married with two daughters aged 7 and 4 respectively.  He was previously employed as a driver, earned about $18,000 per month.  His wife suffers from post-natal depression. D1 is now very remorseful for what he had done, as his imprisonment will inevitably cause considerable amount of stress upon his wife.  His employer is prepared to provide him another job opportunity upon his discharge from imprisonment.  At the time of the commission of the present offence, he was in breach of the probation order of KTCC 3338/2016.

13.  D2 is also 30 years of age, single, lived with his parents and brother prior to the present remand.  He started to work some 14 years ago.  His last job was a delivery worker, earning about $16,000 per month.  Since his release from DATC, he had sought assistance from SARDA to treat his drug problem.  He is determining to kick off the drug habit as all the urine tests all indicate negative for the last nine months.  He is no longer a drug addict.  His mother is currently serving as a counsellor in SARDA.  He has a supportive family.  In view of the small quantity involved, he asks for a lenient sentence.  The defence urge upon this court to call for DATC and probation order report or to impose a suspended sentence.

SENTENCE

14.  I shall deal with Charge 3 first, trafficking in dangerous drugs, against D1.  There were guidelines for trafficking dangerous drugs.  In the authority of SJ v Hii Siew Cheng [2008] 3 HKC 323, the Court of Appeal had said that, where the quantity of ketamine was between 10 to 50 grammes, an appropriate starting point would be between 4 to 6 years.

15.  In the present case, for 13.36 grammes of ketamine, a starting point of 4 years will be appropriate. 

16.  As to 1.42 grammes of cocaine, the guideline of Lau Tak Ming [1990] 2 HKLR 370 should follow and it falls into the sentencing bracket of 2 to 5 years.  That means a starting point of about 2 years will be appropriate.

17.  This is a case which involved more than one type of dangerous drugs.  In my view, it will be appropriate to take the combined approach.  There is a significant amount (13.36 grammes) of ketamine compared to a smaller amount (1.42 grammes of cocaine), even though cocaine is a more potent dangerous drugs.  It will be appropriate to firstly consider the starting point for ketamine and then enhance the starting point to take into account of the quantity of cocaine.

18.  Drugs trafficking is a serious offence and the Court takes a serious view in passing sentence with deterrent effect.  To this end, I adopt a starting point of 4 years for 13.36 grammes of ketamine. 

19.  I enhance the sentence by another 6 months in view of 1.42 grammes of cocaine.

20.  The total starting point is now 4 years and 6 months.  Allow one-third discount, the sentence comes down to 36 months, a term of 3 years’ imprisonment.

21.  As to Charge 1, possession of 0.32 grammes of ketamine, I adopt a starting point of 9 months, reduced to 6 months.

22.  Both sentences to run concurrently.

23.  As mentioned earlier, that D1 was in breach of the probation order imposed in KCCC 338/2016, he will be sent back to Kwun Tong Magistracy to be sentenced afresh for that offence.

D2

24.  This case has been adjourned pending the preparation of DATC and probation officers’ report. 

25.  According to the DATC report, it stated that D2 had started to abuse ketamine since 2009. 

26.  In 2009 he was sentenced to 12 months’ probation order.  In breach of that probation order, he was subsequently put on DATC order in 2010.  Upon his release from DATC, he has been subject to two recalls two times due to the breach of the supervision order.  He claimed that he stopped taking drugs since March 2017 - that was the commission of the present offence - and remained drug free since then.  As he is no longer a drug addict, he is not suitable for admission into DATC. 

27.  The probation officer does not recommend probation order, as his parents were previously drug addicts and they now have multiple health issues as a result of prolonged period of drug abuse.  The previous probation order failed to prevent him from relapsing into his vice habit.  He continued to lead a carefree life, mixed with drugs peers such as D1.

28.  He had been provided with opportunity to deal with his drug problems.  As such, this court does not consider that there is an exceptional circumstances to impose a suspended sentence.

29.  To this end, in view of the quantity of 0.62 grammes of ketamine, I adopt a starting point of 12 months, reduced to 8 months after one-third discount. 

30.  D2 serve a term of 8 months’ imprisonment.