HKSAR v. CHOW HOK MAN

DCCC 134/2021

[2021] HKDC 1500

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 134 OF 2021

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REASONS FOR SENTENCE

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Charges

1.  The Defendant pleads guilty to two charges of trafficking in a dangerous drug.

Facts

2.  Around 2:33 a.m. on 25 September 2020, police officers spotted a private car bearing registration mark VS9172 (the “Private Car”)  entered TKO Spot Carpark C, Sheung Tak Estate, Tseung Kwan O, New Territories, Hong Kong, and then the Private Car stopped in the Parking Space No. C0008.

3.  At the material time, there was only one person on the Private Car, namely a male (later known as D)  sitting on the driver’s seat of the Private Car.  Thereafter, D got out of the Private Car, and was then intercepted by police officers for enquiry, near the management office of TKO Spot Carpark C.

4.  Upon body search, a piece of tissue was found near the wristband of the shorts worn by D, which contained 1 paper packet containing 0.01 grammes of a solid containing ketamine (“E1”), and 3 plastic bags containing a total of 1.70 grammes of a solid containing 1.45 grammes of ketamine (“E2”).

5.  In the same body search, HK$2,272 cash was found in D’s wallet, while 2 mobile phones with SIM cards, a key of the Private Car, and HK$27,766 cash were found in the handbag carried by D.

6.  Upon search of the Private Car in the presence of D, the following items were found in the hidden compartment near the steering wheel of the Private Car (i.e. behind the instrument cluster):

(a)  2 pieces of tissues which contained 1 paper packet containing 0.42 grammes of a solid containing 0.35 grammes of fluorodeschloroketamine (“E3”)  and 1 plastic bag containing 0.54 grammes of a solid containing 0.47 grammes of ketamine (“E4”);

(b)  5 plastic bags containing a total of 3.69 grammes of a solid containing 3.20 grammes of ketamine (“E5”);

(c)  3 plastic bags containing a total of 2.43 grammes of a solid containing 2.11 grammes of ketamine (“E6”);

(d)  8 plastic bags containing a total of 6.05 grammes of a solid containing 5.25 grammes of ketamine (“E7”);

(e)  40 plastic bags containing a total of 30.5 grammes of a solid containing 25.9 grammes of ketamine (“E8”);

(f)  40 plastic bags containing a total of 30.3 grammes of a solid containing 26.3 grammes of ketamine (“E9”);

(g)  30 plastic bags containing a total of 22.9 grammes of a solid containing 19.9 grammes of ketamine (“E10”); and

(h)  70 plastic bags containing a total of 53.6 grammes of a solid containing 46.3 grammes of ketamine (“E11”).

7.  D was then arrested.  Under caution, D stated that the dangerous drug seized near the wristband of the shorts worn by him was for his own self-consumption, and the dangerous drugs seized from his vehicle also belonged to him.  His father was not involved.  D’s cautioned statement at scene was later recorded in a police notebook with D’s acknowledgement.

8.  In D’s video-recorded interview conducted later on the same day, under caution, he stated that the registration mark of his private car was VS9172, and then remained silent to all other questions.

9.  According to the fingerprint examination report, the fingerprint of D’s left middle finger was found on the front nearside door outside of the Private Car.

10.  The total street value of the ketamine seized (i.e. E1 – 2 & E4 - 11)  and the fluorodeschloroketamine seized (i.e. E3)  is estimated to be around $64,433.

11.  At all material times, D possessed the ketamine seized (i.e. E1 – 2 & E4 - 11)  and the fluorodeschloroketamine seized (i.e. E3)  for the purpose of unlawful trafficking.

Mitigation

12.  D is 41 years of age.  He has some light criminal records, none relating to dangerous drugs.

13.  He has records of constant donation to the charity and voluntary work.  

Sentencing considerations

14.  The sentencing guidelines for trafficking in up to 1 gramme of ketamine indicate not more than 2 years whereas 50 to 300 grammes of ketamine indicate 6 to 9 years of imprisonment (SJ v Hii Siew-cheng [2009] 1 HKLRD 1). 

15.  The courts adopt the same sentencing guidelines for ketamine and fluorodeschloroketamine due to their similar physical, psychological and clinical effects (香港特別行政區 訴 李君鳴 DCCC 708/2019)  and their similar components whilst flurodeschloroketamine is equally, or slightly more, toxic compared to ketamine (香港特別行政區 訴 胡家俊DCCC 40/2020).

16.  It is appropriate where two or more counts of drug trafficking are charged and the offences occur on the same day and at the same time, where the reason for there being two or more charges as opposed to one is primarily that the drugs are located in different places, for the court to add the total of the active ingredient of the drugs together to arrive at a notional starting point (HKSAR v Lam Chi Wa CACC 94/2008). 

Sentencing D

17.  I take a starting point of 7 years for each charge.  There is a one-third discount for the plea of guilty.  I also reduce it by 2 months due to his donation to charity and voluntary work.  The sentence is 4 years 6 months for each charge.  The sentences shall be concurrent.