HKSAR v.CHEUNG KAM CHEUNG

DCCC318/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 318 OF 2012

----------------------

-------------------------

Reasons for Sentence

-------------------------

1. The defendant has pleaded guilty to one count of trafficking in a dangerous drug.

Facts Admitted by the Defendant

2. At about 1924(1942?) hours on 19 February this year, Senior Customs Officer 81201 (PW1) intercepted the defendant who was an incoming passenger at the exit of the Green (Nothing to declare) Channel, Customs Arrival Hall at Lowu Control Point.

3. PW1 and Customs Officer 9309 (PW2) searched the defendant and his baggage.  As a result, two plastic bags containing some powder were found inside the defendant’s underpants.  The defendant was arrested and cautioned.  The two plastic bags of powder were seized.  Under caution, the defendant admitted that the two packets of powder were ketamine and alleged that they were for his own consumption. 

4. In a subsequent record of interview, the defendant admitted the two plastic bags contained ketamine.  They belonged to him and was for his own consumption.  He bought the drugs from an unknown male in a park in Shenzhen for RMB400.  He consumed the drugs three times a day and the amount consumed per day was about 1 gramme.  The two bags of drugs were sufficient for 10 days. 

5. The drugs were examined by the government chemist who found that the two bags contained 15 grammes of a powder with 12.78 grammes of ketamine.  The street value of the drugs was $1,620.

6. The defendant is now 49 years old, married.  His wife lives in Shenzhen.  The defendant is living on a disability allowance and comprehensive social security allowance totalling $3,000 per month.  He has nine previous convictions, two of which were drug-related.  One of those drug-related convictions was for trafficking in dangerous drugs in 1996.

7. Counsel submitted that it was cheaper for the defendant to purchase the drugs in China.  The quantity of drugs was not very large and there is no obvious latent risk.  The defendant has pleaded guilty. She urged the court to be lenient.  She also relied on the case of HKSAR v Chow Kam Lung [2010] 6 HKC 49 and submitted that personal consumption was a strong mitigating factor.

Reasons for Sentence

8. I have considered the facts of this case, the defendant’s background and mitigation and the authorities submitted by counsel very carefully.  The sentencing guidelines for trafficking in ketamine are set out in HKSAR v Hii Siew-cheng [2008] 3 HKC 323.  According to those guidelines, the appropriate starting point for trafficking in 10 to 50 grammes of ketamine is 4 to 6 years.

9. In the present case, the narcotic content of the drugs was 12.78 grammes.  I adopt a starting point of 4 years.  However, the defendant alleged that the drugs are entirely for his own consumption. There is nothing to contradict that allegation and the quantity is not so great to make that allegation implausible.  I would accept that the drugs were for the defendant’s own consumption.  Where it is apparent that a significant portion of the drugs are for the accused’s own consumption, the court should adjust sentence to reflect the fact that not all the drugs are for trafficking.  See HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, HKSAR v Cheung Ching Fai, Court of Appeal, case No. 443 of 2005, 17 May 2006, and Chow Kam Lung (supra).

10. In Chow Kam Lung (supra), the Court of Appeal held that importing a dangerous drug, whether it was for the purpose of later dealing in the drug or for personal consumption, constituted the offence of trafficking.  Importation for personal consumption was not to be treated in substance as an offence of mere possession, R v Brian Meah and Philip John Marlow [1991] 92 Cr App R 254.  In Chow Kam Lung, the accused imported 22.15 grammes of ketamine for his own consumption.  He had two previous drug‑related convictions but none of them was for trafficking. 

11. Since I have accepted that the drugs in the present case are for the defendant’s own consumption, I will reduce the starting point to 3 years.  However, I have to take into account the latent risk factor.  I disagree that there is no obvious latent risk.  The defendant is a habitual drug-user and has one previous conviction for trafficking.  The quantity of drugs is not very large but even according to the defendant, even for a heavy addict like him, 1 gramme per day is sufficient. In other words, the defendant had in his possession more than sufficient for 12 days.

12. I find that there is a substantial latent risk. The starting point is therefore enhanced to 3 years and 9 months.  The defendant has pleaded guilty.  I give him full credit for his plea.  The sentence is reduced to 30 months, 30 months’ imprisonment.