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DCCC 785/2016
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 785 OF 2016
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| Before : |
H.H. Judge G. Lam |
| Present : |
Ms. Janice CHEUK, SPP (Ag.), of the
Department of Justice, for HKSAR. |
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Mr. Dominic LAI of M/s Dominic Y.K. Lai &
Co., assigned by the Director of Legal Aid, for the
defendant. |
| Offence : |
Trafficking in dangerous drugs（販運危險藥物） |
REASONS FOR SENTENCE
1. The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs". The dangerous drugs involved are ketamine and cocaine.
Summary of Facts
2. About 12:05 a.m. on 7 June 2016, outside No.43 Carnarvon Road, Tsim Sha Tsui, PC 16538 (PW1) stopped the defendant for enquiry.
3. Upon search, PW1 found in the defendant's right front trouser pocket a transparent resealable plastic bag wrapped in a piece of pink paper. That transparent resealable plastic contained another transparent resealable plastic bag, which contained 2.63 grammes of a powder containing 1.89 grammes of ketamine (E1). When asked about E1, the defendant attempted to flee but was later subdued by police officers.
4. Upon further search, PW1 found in the defendant's right rear trouser pocket: (i) a transparent resealable plastic bag (wrapped in a piece of white tissue paper and a piece of pink paper), which contained 22.1 grammes of a solid containing 16.8 grammes of cocaine (E2); and (ii) an electronic scale wrapped in a piece of paper.
5. Under caution, the defendant admitted that he bought the cocaine and ketamine seized.
6. In his video-recorded interview, the defendant admitted that E1 and E2 belonged to him, but was unable to recall any further details about the drugs. He now admits that he possessed E1 and E2 for the purpose of unlawful trafficking.
Mitigation & Sentence
7. The defendant is 22 and single. He has a clear record. Defence solicitor Mr. LAI informed me that at the time of his arrest, the defendant was a part-time waiter earning about $10,000 per month. He resides with his parents and elder brother.
8. In mitigation, Mr. LAI submitted that all the ketamine in E1 and 10 grammes of the cocaine in E2 were for the defendant's own consumption. Mr. LAI also submitted that the defendant was cooperative with the Police since his arrest. In his written submissions, Mr. LAI explained that the defendant went to the hotel room mentioned in the Amended Summary of Facts to buy drugs. He took some ketamine and cocaine to test their quality. The drugs blurred his memory, and he was thus unable to recall any details regarding his purchase of the drugs[1].
9. A letter written by the defendant's mother was placed before me; its contents are duly noted.
10. 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 offenders.
11. The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370) and ketamine (see SJ v HII Siew Cheng [2009] 1 HKLRD 1). For 10 to 50 grammes of cocaine, the sentence ranges from 5 to 8 years' imprisonment. For up to 10 grammes of ketamine, the sentence ranges from 2 to 4 years' imprisonment.
12. In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v YIP Wai-yin & another CACC 80/2003, HKSAR v CHENG Yat-ming CACC 455/2006 and HKSAR v CHAN Yuk-leong CACC 318/2013.
13. In the present case, the defendant trafficked in a cocktail of drugs consisting of 16.8 grammes of cocaine and 1.89 grammes of ketamine. For 16.8 grammes of cocaine, the appropriate starting point is 5.5 years. For 1.89 grammes of ketamine, the appropriate starting point is 2 years. I am of the view that the "combined approach" would arrive at a realistic and fair sentence.
14. In terms of either potency or quantity, 16.8 grammes of cocaine should form the basis of the starting point. Hence, I adopt a starting point of 5.5 years' imprisonment and adjust it upward by 6 months for the small quantity of ketamine, arriving at 6 years.
15. Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles[2]. There is no evidence to suggest that the defendant is a drug addict, except his bare assertion that he has been a cocaine user since the age of 20[3]. Even if it was true, I, reject his claim that 10 grammes of the cocaine in E2 were for his own consumption. There is simply no basis to support such a claim. I cannot overlook the fact the he was carrying with him an electronic scale, a tool which is frequently used by drug traffickers. I am prepared to reduce the sentence to 63 months[4] to reflect the discount for self-consumption.
16. Finally, a one-third discount is given for the guilty plea, reducing the sentence further to 42 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 42 months' imprisonment.
[1] See paragraph 9 of defence written submissions.
[2] 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).
[3] See paragraph G of his antecedent statement.
[4] 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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