HKSAR v. LEE TAK HUNG

DCCC 987/2021

[2023] HKDC 411

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 987 OF 2021

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REASONS FOR SENTENCE

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Background

1.  The defendant pleaded guilty to three charges:

(1)  Possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134, namely, 0.64g of a power containing 0.55g of ketamine;

(2)  possession of a dangerous drug, contrary to section 8(1)  (a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134, namely, 0.44g of a power containing 0.38g of ketamine;

(3)  trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, namely 11.8g of a solid containing 10.2g of ketamine.

2.  He admitted to the Summary of Facts prepared by the Prosecution.  I convicted him accordingly.

Summary of Facts

3.  The defendant was found possessing the drug under charge 1 during an anti-drug operation near his home (“the House”)  at around 5:32 pm on 13 July 2021. Under caution, he admitted that the ketamine belonged to him and claimed that they were for his own consumption.

4.  At around 6:05 pm, he was escorted back to the House for a search.  At around 6:20 pm, the drug under charge 2 was found in the House.  He claimed that the ketamine was for his own consumption.

5.  At around 6:40 pm, police further found a big transparent resealable plastic bag containing 18 small transparent resealable plastic bags, each containing white solid ie the drug under charge 3, 13 empty transparent resealable plastic bags and an electronic scale.  Under caution for trafficking in a dangerous drug, the defendant asked for a chance and admitted that he was helping his friend to take the ketamine for HK$400 per bag.

6.  In a cautioned video-recorded interview on 14 July 2021, the defendant stated inter alia that the drugs under charge 1 and 2 were ketamine belonging to him. He usually bought 8 to 10 bags of ketamine each time as it was cheaper.  His friend called him on that day and asked him to bring 5 to 6 bags of ketamine for him, so he helped his friend to get the ketamine in one go.

7.  The quantities of the drugs were confirmed by the Government Chemist’s Certificate dated 9 August 2021.  According to the Narcotics Bureau, the estimated street value of all drugs seized in the present case as of July 2021 amounts to around HK$7,780.  The defendant’s urine test revealed a positive result of amphetamine.

The Defendant’s personal background

8.  The defendant, male, aged 37 was born in Hong Kong.  He is the youngest child of his parents and has two elder brothers.  He is single and received education up to secondary three.  He was a causal delivery worker and was earning about HK$18,000 per month at the time of arrest.  He resided with his mother and his 2^nd elder brother.  He suffered from Asthma for a long time.

9.  His mother is now 73 years old and suffered from breast cancer since 2020 and had a major operation at the end of 2020.  Since then, she remains weak and fragile and has to reply on the daily care of both the defendant and the defendant’s 2^nd elder brother.

10.  The Defendant had been sentenced for four times.  His first conviction was in 2002 for trafficking in dangerous drug.  He was subsequently in 2011, 2013 and 2015 sentenced for possession of dangerous drugs and admitted to Drug Addiction Treatment Centre (“DATC”)  twice and imprisoned for four months once.

11.  It was submitted on his behalf that a mitigation letter was written by him. However, it was sent to an incorrect address and could not reach his solicitors.  In essence, he expressed his remorse.  He missed his mother and wished to be released early to take care of her.

12.  It was submitted by his counsel that soon after his release from DATC in 2016 from his last conviction, he relapsed and consumed ketamine again.  At the time of his arrest for the present case in 2021, he was consuming ketamine on a daily basis which costed him at least HK$10,000 per month.  He could not make ends meet and resorted to trafficking to make fast money.  He bought the drugs in larger quantities at a lower price.  He repacked them into smaller packers and sold them to his friends to earn the difference in price.

13.  It is submitted that the defendant is remorseful.  He reflected upon himself during the detention and regretted for attempting to make fast money by illegal means.

14.  His elder brothers and mother also ask for the Court’s leniency.

Discussion

15.  I shall start from charge 3.

Charge 3

16.  The sentencing guideline for trafficking in ketamine was laid down by the Court of Appeal in Secretary for Justice v Hill Siew Cheng [2009] 1 HKLRD 1.  The guideline for sentence after trial for traffickers in ketamine of 10g to 50g is 4 to 6 years’ imprisonment.  The starting point for trafficking 10.2g ketamine under charge 3 is 48 months’ imprisonment arithmetically.

17.  The defendant does not seek any reduction for self-consumption in relation to charge 3.  He admitted to his guilt at the earliest available opportunity immediately after being arrested by the police.  It is submitted on his behalf that he has been cooperative with the police in informing the police that all the drugs inside the House belonged to him.  He also admitted frankly in the present mitigation that he relapsed to his ketamine addiction which strained him financially and led him to where he is now.  He stated that he is no longer a dependent of dangerous drugs due to the detention since Mid 2021.  He looked forwards to taking care of his mother after he is released.  He showed his willingness to turn a new leaf though it is questionable that whether it will come into fruition given his deep-rooted drug problem.  His personal circumstances do not constitute any valid reason for reduction in sentence.  Despite that,I agreed that considerable time and public funds are saved.  His previous conviction of trafficking in dangerous drug was back in 2002 and I would not consider it as an aggravating factor due to the lapse in time.  He is therefore entitled to the full one-third discount to reflect his guilty plea.  The sentence for charge 3 is 32 months’ imprisonment.

Charges 1 and 2

18.  As for charge 1 which involves possession of 0.55g of ketamine and charge 2 which involves possession of 0.38g of ketamine, the counsel for the defendant submitted that the sentence is within the Court’s discretion.  She relied on HKSAR v Yuen Chun Kit and another DCCC 420/2016, unreported, 3 August 2016 and submitted that the starting point in the present case should be less than 12 months.

19.  According to HKSAR v Mok Cho Tik CACC 165/2000, unreported, 7 February 2001 at paragraph 17, the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months.  The Court should also consider the quantities of the drugs and the full circumstances of the risk in determining the starting points.  While the defendant’s four previous records were all related to drugs, given the relatively small quantities of drugs involved, I adopted 9 months as the respective starting points for both charges.  The sentences for charge 1 and 2 be reduced to 6 months respectively due to the defendant’s guilty pleas.

Totality principle

20.  In considering whether the sentence should be served concurrently or consecutively, I have directed myself of the totality principle of sentence. All the three charges took place at approximately the same time and either in the proximity of the incidents under the House or in the House.  All the drugs in the three charges were of same type ie ketamine.  The drugs in charges 1 and 2 were of relatively small quantities.  In the circumstances, I am satisfied that a concurrent sentence would adequately reflect the defendant’s criminal culpability in the present case.  I therefore order that the sentences on charges 1, 2 and 3 be served concurrently.  The sentence is 32 months’ imprisonment.