HKSAR v. HUNG YIU CHO

DCCC 122/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 122 OF 2009

____________

____________

REASONS FOR SENTENCE

1.  The defendant stands convicted after trial of one charge of trafficking in 26.77 grammes of a powder containing 19.62 grammes of ketamine, 20 tablets containing 0.09 grammes of nimetazepam and 15 tablets containing 1.69 grammes of ecstasy and 0.05 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134. 

2.  Full particulars of the offence are set out in my reasons for verdict delivered on the 5th June 2009.  In summary at around 00.53 on the 26th December 2008 the police intercepted the defendant and found from the right front pocket of the defendant’s pants two plastic bags containing the ketamine, 3 foil packs containing the nimetazepam and one resealable plastic bag containing the 15 tablets.  The defendant was also found in possession of $31,900.

3.  In June last year the Court of Appeal in the Secretary for Justice v HII Siew-cheng [2008] 3 HKC 325 laid down new guidelines for trafficking in ketamine and ecstasy.  Where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years imprisonment.  21.36 grammes of ketamine and ecstasy place this towards the lower end of that range. 

4.  The defendant is 21 and has been before the court on three previous occasions.  The last two occasions were in October and November last year when the defendant pleaded guilty to possession of drugs.  The drugs concerned were different to the drugs in the present case, namely ice and cocaine.  On each occasion the defendant was sentenced to probation.  I have had the opportunity of reading the case papers, including the DATC and probation reports.  I note the defendant was found not to be a drug dependant in October last year and urine tests taken by the probation officer, also in October, revealed negative for all drugs, including ketamine.

5.  As the defendant has never been to prison before I called for a background report before passing sentence.  The report is very detailed and reveals inconsistent accounts given by the defendant as to his drug history (see paragraph 4); relations with his family, especially his father have been tense (see paragraphs 2, 5, 7 and 11); association with triad peers (see page 1 under school and paragraph 7) and that he earned quick money from trafficking drugs in late 2008 (see paragraph 11).

6.  In passing sentence I take into account the defendant is still young.  I have carefully considered everything said by Miss Chan.  I am told that the content of the background report is agreed save that when the defendant denied to the probation officer trafficking in the drugs          (see paragraph 5 of the report) he meant he did not sell them but would have shared them with his girlfriend.  Miss Chan submits that this would amount to social trafficking and is therefore less serious. 

7.  As I said to Miss Chan at the time of the submission I reject this account now put forward by the defendant.  This was not the evidence of the defendant at trial nor did he say this to the probation officer.  I also note that in the urine tests taken since the defendant was placed on probation these were shown to be positive for ice and cocaine not ketamine (see paragraph 10 of the report). 

8.  Further I do not agree that social trafficking is any less serious.  The Court of Appeal in HII Siew-cheng specifically addressed this issueat paragraphs 98 and 99.  This is not a case involving small quantities of drugs or one of a habitual abuser of ketamine who is caught in the act of supplying a close acquaintance such as a boyfriend or girlfriend who is also a regular consumer of drugs, which might well give rise to circumstances where a non-custodial sentence would be justified.  The quantity of drugs possessed by the defendant is substantial for which as seen earlier falls within the range of 4-6 years imprisonment.  

9.  I am satisfied the proper starting point after trial for 21.36 grammes of ketamine and ecstasy is 4 years and 6 months imprisonment.  I am satisfied the small quantity of nimetazepam adds nothing to the overall criminality of the trafficking charge. 

10.  Miss Chan asks that I give credit to the defendant for admitting possession.  Whilst this may have saved some court time I am satisfied in the circumstances of the case no reduction should be given in the sentence by reason of admitting possession.  The defendant is sentenced to 4 years and 6 months imprisonment. 

11.  The defendant is in breach of two probation orders imposed in October and November last year in KCCC 5071/2008 and                KCCC 6613/2008 for offences of possession of dangerous drugs.  Pursuant to my powers under section 6(6) of the Probation of Offenders Ordinance, Chapter 298 the probation orders are discharged and the defendant re-sentenced to terms of 3 months imprisonment on each charge.  The offence in KCCC 6613/2008 was committed whilst the defendant was on court bail for KCCC 5071/2008.  I order the two sentences to be served consecutively.  These are separate and distinct from the offence the defendant is now sentenced to 4 years and 6 months imprisonment and therefore consecutive sentences are appropriate.  However taking into account the totality of sentence to be served by the defendant I order the sentences to be served concurrently.  The defendant goes to prison for 4 years and 6 months imprisonment