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DCCC 421/2016
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 421 OF 2016
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| Before : |
H.H. Judge G. Lam |
| Present : |
Mr. LEE Yiu Chung, counsel on fiat, for HKSAR. |
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Mr. CHEUNG Yiu Leung instructed by M/s
Leung & Lau, assigned by the Director of Legal
Aid, for the defendant. |
| Offence : |
Trafficking in a dangerous drug（販運危險藥物） |
REASONS FOR SENTENCE
1. The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is ketamine.
Summary of Facts
2. About 9:00 p.m. on 25 February 2016, the defendant's girlfriend came out of Ground Floor, No.153 Wing Ning Tsuen, Fanling ("the Flat"). She was followed by the defendant. Police officers intercepted them and found keys to the Flat on the defendant. The Flat has a living room, 2 bedrooms and a bathroom.
3. The Flat was searched pursuant to a search warrant. On a table in the living room, amongst other things, the Police found :-
(i) 6 plastic bags which contained a total of 3.09 grammes of a solid containing 1.54 grammes of ketamine (E1); and
(ii) 1 electronic scale (E2).
And on top of a plastic cabinet in one of the bedrooms, amongst other things, the Police also found :-
(i) a green resealable plastic bag containing 5 plastic bags which contained a total of 135 grammes of a powder containing 62.40 grammes of ketamine (E6); and
(ii) a plastic bag containing 34 small transparent plastic bags (E7).
4. In his video recorded interview, the defendant explained when and how he purchased from a male named "Saw Fai" 5 large packets of "K Chai". He claimed that in order to carry with him the drug when he goes out, he had divided 1 large packet of "K Chai" into 7 to 8 smaller packets. The defendant admitted that E1, E2, E6 and E7 all belonged to him. E2 (the electronic scale) and E7 (the 34 smaller resealable plastic bags) were given to him by "Saw Fai" when he purchased the drug. He claimed that he had used E2 to weigh the smaller packets and to check if "Saw Fai" had given him the correct quantity of "K Chai".
Mitigation & Sentence
5. The defendant is 23 and single. He has 2 conviction records, which included 1 "simple possession" offence. Defence counsel Mr. CHEUNG informed me that at the time of his arrest, the defendant was a construction worker. The defendant's mother rented the Flat for him because his relationship with his father was not good.
6. In mitigation, Mr. CHEUNG submitted that about 1/3 of the ketamine found was for the defendant's own consumption. Mr. CHEUNG explained that defendant has stated in his video recorded interview why and how he divided a larger packet of ketamine into smaller packets. What he did not mention was how much he would consume at home. Regarding the quantity of self-consumption claimed by the defendant, prosecuting counsel Mr. LEE submitted that his stance is neutral. A mitigation letter written by the defendant was placed before me; its contents are duly noted.
7. A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh young offenders, so that there is a deterrent effect.
8. The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see SJ v HII Siew Cheng [2009] 1 HKLRD 1). For 50 to 300 grammes, the sentence ranges from 6 to 9 years' imprisonment. The defendant trafficked in 63.94 grammes, the appropriate starting point is 74 months' imprisonment.
9. Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles[1].
10. There is some evidence showing that the defendant was a drug user at the time of arrest. There is no evidence rebutting the quantity he claimed for self-consumption. On the other hand, the electronic scale and empty resealable plastic bags strongly indicate a high risk of trafficking. Having considered the likelihood of all possibilities, I am prepared to reduce the sentence to 60 months[2] to reflect the discount for self-consumption.
11. Finally, a one-third discount is given for the guilty plea, reducing the sentence to 40 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 40 months' imprisonment.
[1] See HKSAR v CHOW Chun Sang [2012] 2 HKLRD 1121; HKSAR v WONG Suet Hau & another [2002] 1 HKLRD 69 and HKSAR v CHEUK Kin Man CACC 294/2009 (English translation).
[2] In CHOW Chun Sang, Yeung VP held "We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant." (paragraph 19, p.1126)
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