HKSAR v. CHAN CATHERINE

DCCC173/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 173 OF 2012

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Reasons for Sentence

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1.  The defendant in this case has pleaded guilty to a charge of trafficking in 12.63 grammes of ketamine.

2.  The facts admitted by the defendant are that on 30 December 2011 at 3.42 am she was intercepted at the Arrivals Hall at Lok Ma Chau Control Point in the New Territories.  She was searched and from her clothing the drugs, the subject of the charge, were recovered.

3.  The value of the drugs is just over $1,900.

4.  She explained, after her arrest, to the Customs officers that she was travelling in fact to mainland China via Lok Ma Chau but was unable to do so because she had lost her Hong Kong Identity Card and was unable to get access to China with her Acknowledgment of Application for a Hong Kong Permanent Identity Card.  She therefore returned to the Hong Kong Arrivals Hall and was intercepted by Customs officers when she did so.

5.  The defendant has been before the court on four previous occasions.  On two occasions she was convicted of possession of dangerous drugs; on the first occasion in 2005 she was sentenced to a fine of $5,000 and in 2008 she was given a suspended prison sentence of 3 months, suspended for 12 months. 

6.  The defendant is 26 years of age.  She was born in Hong Kong.  Her mother, I am told, is her father’s second wife and her parents separated when the defendant was born.  The defendant lived with her father for about 15 years before he emigrated to the US.  Apparently, she got into trouble in 2001 when she was 16, she took her elder sister’s ID card to visit a disco and was sentenced to a girls’ home.  When she came out of the home, she resumed studies at Form 3 standard.  Because of lack of interest, she joined the workforce after completing Form 3. 

7.  It was soon after that she committed her first offence of possession of dangerous drugs which related to possession of ecstasy.  She jumped bail for about 2 years, during which time she lived with her former boyfriend and worked as a saleslady at a fashion shop.  In 2005, according to the defence counsel, she suddenly came to her senses and decided to give herself up.  She was fined and given a suspended prison sentence. 

8.  After that she started to work as a beer promoter and she became addicted to ketamine.  And in 2008 she was given a suspended sentence for possession of ketamine.  She continued to work as a promoter for a beer company and she also attended a beautician course.  That course ended in 2011 and thereafter she put more time into working as a beer promoter and again started to take drugs. 

9.  She says that she is aware of the harmful effects of ketamine and has had treatment because of the side effects of taking ketamine.

10.  While she was working as a beer promoter, she gave much of her salary to her mother for family expenses.  She was earning about $10,000 per month.

11.  I am told that on the day in question, she started work at an outdoor bar in Discovery Bay at 5.30 and left at 9.30 that evening.  She called the drug dealer requesting ketamine, and I am told that she was told he had half a bag, 14 grammes, and could sell it to her for $800 which was an attractive price.  After completing the transaction, she put the ketamine under her clothing and went to work till midnight.

12.  She later had a drink with her boss and other employees and at 2 am she was quite drunk.  Someone suggested going to the mainland for massage and she forgot about the ketamine in her possession and went with her friends to Lok Ma Chau by minibus.  It was only then that she realized that she did not have her ID card and she was subsequently arrested.

13.  I am told that one of the side effects of taking ketamine is the need to go to the washroom frequently.  The custody record which has been produced shows that when she was in custody she frequently had to do so.  This supported her contention that she is an abuser of ketamine the drugs were for her own use.

14.  I am told that the defendant has been in custody since December 2011 and is now determined to give up taking drugs.  A letter has been produced before the court from the defendant stating that that is her intention, that she is remorseful and no longer wishes to disappoint her mother. 

15.  The basis on which the plea to this charge has been entered is that the drugs were for her own consumption but she was taking the drugs to the mainland.  I have been referred to the case of Secretary for Justice v Chan Chun Fai CAAR11/2010 which states that where the court is satisfied that there is possession for self-consumption but there is a latent risk of distribution, there should be a reduction in sentence.

16.  The Court of Appeal have said that for trafficking in the quantity of between 10 and 50 grammes of ketamine, the appropriate sentence is 4 to 6 years.  The defendant was trafficking in 12.63 grammes of ketamine.  On the basis of the authorities, I would normally for trafficking take a starting point of 4 years. 

17.  Having considered the mitigation in this case and the basis on which the plea has been entered, I am going to reduce that starting point to 3 years’ imprisonment.  The defendant is entitled to credit for her guilty plea, so there will be a further reduction of sentence to a sentence of 2 years’ imprisonment.