HKSAR v. CHOI KWONG WING

DCCC 448/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 448 OF 2009

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Reasons for Sentence

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Charge and facts

1.  The defendant pleads guilty to a charge of trafficking in a dangerous drug.  The offence took place at about 8:52 p.m. on 27 February 2009 when the Defendant arrived at the arrival hall of the Control Point from Mainland.  The police were conducting anti-drug duties and they found him suspicious in the way he walked.  He was intercepted at the tour bus zone of the Control Point.  A search on him yielded the following:

(1)  From his waist bag was a resealable plastic bag containing 10 empty resealable plastic bags;

(2)  From his underpants were three resealable plastic bags, the first of which containing 25.84 grammes of a powder containing 20.82 grammes of ketamine, the second of which containing 27.34 grammes of a powder containing 18.52 grammes of ketamine, and the last of which containing 28.90 grammes of a powder containing 17.89 grammes of ketamine, as later analysed and weighed by the government chemist;

(3)  The total weight of mixture was 82.08 grammes.  The total weight of ketamine was 57.23 grammes.

2. After being arrested for trafficking in dangerous drugs and cautioned, he said:

(1)   The three bags of ketamine were purchased by him in Mainland;

(2)   He brought it back to Hong Kong for self-consumption and he would sell some of it to his friends;

(3)   He would put it into small packets to be sold at HK$200 per packet;

(4)   He would sell it to his friends when they asked for it.

3. In a subsequent video-recorded interview, he said;

(1)   He would use the empty resealable plastic bags inside his waist bag for packaging of the ketamine;

(2)   He had used HK$3,300 to purchase the three bags of ketamine in Mainland;

(3)   He brought the ketamine to Hong Kong as he was in financial difficulties and wanted to earn money to support his living.

Mitigation put forward

4. The defendant is now 30 years of age.  He has a clear record.  He has received education up to F. 3 level.  He has done various unskilled jobs before arrest.  He last worked as a transportation worker from May 2008 onwards with a monthly salary of $8,000.  He is a divorcee.  His 9-year-old son lives with his ex-wife.  He has not seen his son after arrest.   

5. In mitigation his solicitor points out that out of the three bags of ketamine, one part, namely the first bag which contained 20.82 grammes of ketamine, was for self-consumption.  The other part, namely the second and the third bags, which contained 36.41 (i.e., 18.52 + 17.89) grammes of ketamine in total was for selling to friends in disco where he and they together frequented.   

Sentencing principles

Guidelines for sentencing ketamine traffickers

6. The Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 has laid down new sentencing tariffs as follows:

 (1)     up to 1 gramme – within the sentencer’s discretion;

(2)     over 1 gramme to 10 grammes – 2 to 4 years’ imprisonment;

(3)     10 to 50 grammes – 4 to 6 years’ imprisonment;

(4)     50 to 300 grammes – 6 to 9 years’ imprisonment;

(5)     300 to 600 grammes – 9 to 12 years’ imprisonment;

(6)     600 to 1000 grammes – 12 to 14 years’ imprisonment; and

(7)     over 1000 grammes – 14 years upwards.   

7. The total weight of ketamine in our present case, 57.23 grammes, falls within the range of 6 to 9 years’ imprisonment. 

Importing for self-consumption

8. In The Queen v. Chan Mung Lung [1992] 2 HKCLR 127, the appellant was in possession of heroin upon his arrival in Hong Kong via Lo Wu.  He pleaded guilty to a charge of trafficking in a dangerous drug but claimed that the drug was for his own use.  The prosecution did not accept the claim.  When sentencing him to 4 ½ years’ imprisonment, the sentencing judge did not make a specific finding as to which part was for self-use or resale.  Penlington JA delivered the judgment for the Court of Appeal.  He said at 130:

The question of whether or not the applicant was bringing the drugs into Hong Kong for his own consumption or for re-sale was highly relevant to the question of the proper sentence to be passed, and if they were only for his own use, was a strong mitigating factor.

On a version of fact most favourable to the appellant, the sentence was reduced to 1½ years.

Self-consumption and latent risk

9. In R v Chiu Hung Wong [1994] 1 HKCLR 184, the Court of Appeal approved the observations of the sentencing judge, Lugar-Mawson J, who had said:

"That is not to say however that a Judge should close his eyes to the obvious dangers and temptations that the possession of a large quantity of drugs in the hands of an addict may present both to himself and society. It is known and I would be ignoring over 12 years experience in criminal practice in Hong Kong if I ignored it, that addicts are persons who are easily tempted and who do sell their stock of dangerous drugs to others in order to fund not only their own addiction, but also their daily living expenses. If their stock is small the risk of sale is slight, if it is large the risk is greater.

10. Subsequent Court of Appeal cases such as HKSAR v Wan Sheung Sum [2000] 1 HKLRD450 and HKSAR v Mok Cho Tik [2001] 1 HKC 261 had also recognized this factor of latent risk.

Sentence I pass

11. I am aware that the whole quantity was imported, which was a form of trafficking.  The prosecution does not take issue with the mitigation that 36.41 grammes of ketamine was for selling to others whereas 20.82 grammes of ketamine was for self-consumption. 

12. I have considered the latent risk pertaining to the part intended for self-consumption.  However, given his clear record, his gainful employment, and in the absence of other circumstances revealed to this Court, I tend to think that his admitted financial difficulties can more or less be met by his expressed intention to sell the major part of the bulk found on him.     In sum, whilst he is to be sentenced on the basis of simple possession of the smaller part, no enhancement of sentence should be made based on latent risk of the same part.  Based on the guidelines for trafficking in Hii Siew Cheng (above) pertaining to the major part and considerations pertaining to simple possession of the smaller part, I take a starting point of 5 ½ years’ imprisonment.  I give a one-third discount for his plea of guilty and clear record.  There are no other mitigating factors.  The sentence is 3 years and 8 months.