HKSAR v. LIU KIN LUNG

DCCC 445/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 445 OF 2013

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REASONS FOR SENTENCE

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1. The defendant pleads guilty to a charge of trafficking in 125.77 grammes of a powder containing 78.42 grammes of ketamine.

2. The ketamine which is the subject matter of the charge was contained in 6 resealable plastic bags which in turn were contained in a resealable plastic bag found in the left front trousers’ pocket of the defendant.  According to the Summary of Facts admitted by the defendant, he was leaving home at the time of the arrest. 

3. The defendant said under caution that he was a drug addict, that he had brought the drugs at $5,000 on the day of his arrest and that all of them were for his own consumption.  The defendant said that he could consume up to 10 grammes per day.  He also said he worked as a dim sum chef earning about $12,000 a month. 

4. On the other hand, the Summary of Facts states that the defendant possessed all the drugs for the purpose of trafficking.  According to the Police the street value of the drug was just a little bit under $15,000.  View in this light and the fact that the defendant has pleaded to trafficking in the whole quantity of drugs, what the defendant said to the Police in the cautioned interview is not totally reliable. 

5. The defendant is aged 25 and of a clear record.  The defendant was educated up to Form 3 and he worked a dim sum chef earning.  Mr Lee for the defendant mitigates on his defendant’s clear record and the guilty plea.  He also said that the defendant had been a drug addict for about 2 years and that he committed the present offence to fund his drug habit.  Mr Lee said that some of the drugs, namely exhibits 2 to 6, were for the defendant’s own consumption. 

6. Mr Wong for the prosecution disputes that some of the drugs were for the defendant’s own use.  However, he is unable to provide any evidence to show that the defendant was not a drug addict.  I note that Mr Lee does not ask for a Newton Hearing. 

7. In the circumstances of the present case, I accept that the defendant was a drug addict.  I am also prepared to accept that the defendant engaged in the drug trade to fund his drug habit.  However, I am unable to accept at face value the assertion that Exhibits 2 to 6 were for the defendant’s own consumption.  I note that the purity of the drugs varies significantly from one plastic bag of drug to another.  I also have the sight of the drugs.  In my view, no inference could be drawn from their packing as to which was for trafficking and which was for self use.  In view of what is said in the Summary of Facts, I form the view that the defendant intended all the drugs for trafficking, but in view of his drug addiction, I would not rule out the possibility that he might use a small part of the drugs himself if need be.

8. According to SJ v Hii Siew Cheng [2009] 1 HKLRD 1, trafficking in ketamine between 50 to 300g would attract a starting point of 6 to 9 years imprisonment.  I note that a mathematical approach of sentencing is not desirable and some regards should be paid to the circumstances of each case and each defendant.  In the present case, in view of the defendant’s relative young age and clear record, I adopt a starting point of 75 months. 

9. The fact that the defendant is trafficking in order to fund his drug habit is not a factor which can reduce the sentence.  However, based on my finding that a small portion of the drug might be used by the defendant himself and the case authorities of HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69 and HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, I give a further discount of 16%.  This reduces the sentence to 63 months.

10. Finally, the defendant is also given the usual one-third discount for the guilty plea, this further reduces the sentence to 42 months.  The defendant is sentenced to 42 months imprisonment.