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HCCC108/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO. 108 OF 2009
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Before: Hon Barnes J
Date: 15 September 2009 at 3.20 pm
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Present:
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Miss Chan Yuet-yee, Grace, SPP of the Department of Justice, for HKSAR
Mr Tong Ming W M, instructed by Henry Chiu & Partners, for the Accused
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Offence:
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(1) Trafficking in a dangerous drug(販運危險藥物)
(2) Possession of a dangerous drug (管有危險藥物)
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: The defendant, Yeung Man-kin, was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, and one count of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the same Ordinance.
He pleaded guilty to both counts before me.
The Summary of Facts
On 16 November 2008, some police officers on vehicle patrol duty at the Kam Shan Country Park spotted a private car with the defendant sitting in the driver’s seat, a woman by his side.
As the defendant immediately started the engine of the car to drive away, the police became suspicious, and one officer immediately told the defendant to stop. This officer saw the defendant lowering his head and putting his hand under the car door.
After the defendant and his female companion alighted from the car, police searched and found a quantity of dangerous drugs inside the compartment at the right front door next to the driver’s seat.
Upon police inquiry, the defendant said they were cocaine and “K chai” for his own consumption. The defendant was arrested, and under caution, the defendant reiterated that the drugs were for his own consumption.
The dangerous drugs were found to be:
(a) 12.18 grammes of a solid containing 8.13 grammes of cocaine;
(b) 31.46 grammes of crystalline solid containing 25.72 grammes of ketamine; and
(c) three tablets containing zopriclone, which is a listed Part I poison.
The retail market value of the total drugs seized was HK$14,534.
The defendant admitted that the cocaine was for his own use and the ketamine was for the purpose of trafficking.
Background and Mitigation
The defendant is a 32-year-old married man with no children. He is not a first offender, as he had four previous convictions, none of which related to the possession of dangerous drugs.
Mr Tong Ming, counsel for the defendant, frankly admitted that there was not much he could say on behalf of the defendant save the defendant’s pleas of guilty. Mr Tong asked me to be as lenient as possible under the circumstances and to order part of the sentence to run concurrent with the other.
The defendant has written to me himself expressing his remorse and desire and determination to start afresh as soon as possible. He asks me to give him a chance.
The defendant’s former employer also wrote to me on the defendant’s behalf, asking for leniency.
Sentence
Trafficking in a dangerous drug is a serious offence, and offenders are severely punished by the courts. In Secretary for Justice v Hii Siew Cheng (2009) 1 HKLRD 1 and HKSAR v Wong Yat San, same report, the Court of Appeal set down guidelines for the trafficking of ketamine.
For trafficking 10 to 50 grammes of ketamine, the appropriate starting point is within the range of 4 to 6 years.
After considering all the circumstances of the offence and the defendant’s background, a starting point of 5 years - that is, 60 months - is appropriate, in my view.
The defendant pleaded guilty to the charge and is entitled to the usual one-third discount.
The sentence after discount is one of 3 years 4 months. That is, 40 months.
Regarding the possession of cocaine, the starting point for the mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession would be in the range of 12 to 18 months. This is from the case of HKSAR v Mok Cho Tik (2001) 1 HKC 261.
It is of course necessary to take into account the latent risk factor - that is, the risk that some of the cocaine may find its way into the hands of others - and to enhance the starting point accordingly. In my view, such latent risk is real in that the defendant had admitted being in possession of a quantity of ketamine for the purpose of trafficking. See the case of Mok Cho Tik and also the case of HKSAR v Jarhia Kuldeep Singh CACC 96 of 2006.
The appropriate starting point for the possession of the 8.13 grammes of cocaine is one of 18 months, and an enhancement of 12 months is appropriate, making a total of 30 months.
The defendant pleaded guilty to this count and is entitled to the usual one-third discount.
The sentence is one of 20 months.
Totality
Apart from the one-third discount, as conceded by Mr Tong on behalf of the defendant, I do not see any other grounds to further reduce the sentence. The defendant’s remorse, as shown by the plea, is reflected by the one-third discount. While I am pleased to hear that the defendant is determined to start afresh when he is released from prison, that is not a ground to further reduce the sentence.
What remains for me to decide is the total sentence to be served by the defendant after applying the principle of totality.
I am of the view that a total of 4 years’ imprisonment would properly reflect the criminality involved.
The actual sentence
For the 1st count, trafficking in a dangerous drug, 3 years 4 months; that is, 40 months.
For the 2nd count, possession of a dangerous drug, 1 year 8 months; that is, 20 months, 8 months of which is to run consecutively to the 3 years 4 months imposed on the 1st count, making a total of 4 years.
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