HKSAR v. YIP CHI KEUNG

DCCC 62/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 62 OF 2013

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Reasons for Sentence

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1.  Defendant pleaded guilty before me to a single charge of trafficking in a dangerous drug, contrary to section4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.  The particulars of offence aver that the defendant:

“... on the 13^th day of November 2012, outside No.65 San Hing Praya Street, Cheung Chau, in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 34.04 grammes of a solid containing 23.72 grammes of ketamine.”

Facts

3.  The case is a simple, straightforward drug trafficking offence.  Basically, it is a stop-and-search case.  At the time of the offence, the defendant was seen acting suspiciously and riding a bicycle outside No. 65 San Hing Praya Street, Cheung Chau. Two plainclothes officers decided to intercept the defendant but when one of them revealed his police identity, the defendant immediately dropped the bicycle and fled.  The two plainclothes officers finally subdued the defendant and upon a body search, from the right pocket of the defendant’s jacket, a black plastic bag which contained 91 transparent resealable plastic bags were found.  After government chemist’s analysis, they were certified to be ketamine with the quantity as particularised in the charge. 

4.  The estimated street value of the exhibit was about $4,050.76.

Background and the Criminal Record of the Defendant

5.  The defendant is now aged 30 years old.  In the past, he had only one criminal record of burglary, of which he was sentenced by the District Court in 2009 for 1 year and 8 months.  He was later discharged from the prison in June 2010.  He had only a Primary 6 education level and he first started out helping the family fishermen business at the age of 18, and after five years, he changed his job due to the close of the fishing business and became a decoration worker between 1999 and 2012.  At the time of the offence, he was unemployed.

Mitigation

6.  In mitigation, Mr Tang, the solicitor for the defendant, told me that the defendant is still single and he lives with his parents together.  One of the reasons why he committed the present offence is because shortly before the time of the offence, the defendant’s employer had absconded with his wages in the sum of $10,000.  Also both parents of the defendant had suffered illness during the time and therefore exacerbated the tight financial conditions of the defendant at the time of the offence.

7.  Mr Tang also submitted to the court a short letter written by the defendant.  In it, the defendant had expressed his remorse and stressing that he was not a dependent on the drugs and he had determined to turn over a new leaf and asked the court to give him the final chance, to be as lenient as possible.

8.  Mr Tang acknowledged that there is a tariff for the sentence of trafficking on ketamine.  He urged the court to take into account that is said on his client’s behalf and to be as lenient as possible.

Sentencing Considerations

9.  Trafficking in a dangerous drug is of course a very serious offence.  Anyone who involved in this kind of criminal activities and was caught would be expected to be dealt with severely by the court.  The defendant had no previous convictions related to drug.  However, he has already been sentenced to the prison for a total of 20 months in the past for an offence of burglary, so he should know and understand that the commission of crime does not pay.

10.  I have listened very carefully to the mitigation but, frankly, I do not consider that there is any mitigating factor.  To me, those are only explanations why defendant committed the offence, but those are economic reasons and the Court of Appeal have made it clear that this cannot be accepted as an effective mitigation.

11.  The only effective mitigation is of course defendant’s plea of guilty which saved the court’s time and for which he will be entitled to a one-third discount of the sentence that I am going to pass. 

12.  In 2009, the Secretary for Justice had applied to the Court of Appeal to upwardly revise the tariff for trafficking on ketamine in the case of Hii Siew Cheng [2008] 3 HKC 323.  As a result, the Court of Appeal had decided that for the amount of ketamine involving between 10 to 50 grammes, the sentence should be between 4 to 6 years.

13.  The present quantity of drugs involved was 23.72 grammes of ketamine.  According to the tariff as laid down, the appropriate starting point in this case therefore should be 4½ years.  The defendant pleaded guilty and he would receive one-third discount. Therefore, the defendant is sentenced to 3 years’ imprisonment.