HKSAR v. CHENG TSZ KIN AND ANOTHER

DCCC 835/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 835 OF 2010

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REASONS FOR SENTENCE

1.  D1 pleads guilty to two charges of trafficking in ketamine (charges 1 & 2); one charge of trafficking in ice, dimethylamphetamine, ketamine and nimetazepam (charge 4); and one charge of possession of apparatus fit and intended for the inhalation of ice (charge 5), contrary to sections 4 and 36 of the Dangerous Drugs Ordinance, Chapter 134. D2 pleads guilty to one charge of trafficking in ketamine (charge 3);

2.  In summary on the 22nd and 27th April this year D1 sold 5.59 grammes and 10.95 grammes of ketamine respectively, to an undercover police officer (charges 1 & 2).

3.  On the 28th April the police went to the home of D1 to execute a search warrant. While waiting outside the flat D2 appeared and knocked on the door.  The police approached D2 at which time someone opened the door.  D2 was taken into the flat and searched.  Inside a pink plastic bag D2 was carrying the police found four small transparent plastic bags containing 76.21 grammes of ketamine. Under caution D2 admitted he was asked to deliver the drugs to the flat (charge 3). 

4.  D1 was inside the flat. Inside the flat the police found 6.41 grammes of ice; 1.22 grammes of dimethylamphetamine; 18.89 grammes of ketamine and 0.14 grammes of nimetazepam (charge 4) and three plastic bottles used for the inhalation of ice (charge 5).  Under caution D1 admitted the drugs found in the flat were for his own consumption and admitted he had sold ketamine to the undercover police officer.

5.  In the Secretary for Justice v HII Siew-cheng [2008] 3 HKC 325 the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 1 gramme and 10 grammes sentence after trial falls within the range of 2-4 years imprisonment; between 10 and 50 grammes 4-6 years imprisonment and between 50 and 300 grammes 6-9 years imprisonment.

6.  The Court of Appeal in Attorney General v CHING Kwok-hung [1991] 2 HKLR 125 laid down guidelines for trafficking in ice.  Where the quantity of narcotic is up to 12 grammes sentence after trial is between 3 and 7 years imprisonment.  In HKSAR v CAPITANIA Edwin F. CACC 28/2004 the Court of Appeal accepted that the reference to 12 grammes was a typographical mistake and should read 10 grammes. 

D1

7.  In passing sentence I have carefully considered everything said by Mr Tse on behalf of D1 together with the content of the letters from his mother and employer.  I take into account D1 has no drug convictions.  

8.  I am satisfied the proper starting point for the sale to the undercover police officer of 5.59 grammes of ketamine is 3 years imprisonment and 10.95 grammes of ketamine is 4 years imprisonment. 

9.  Although linked by the fact both sales were to the same undercover police officer, they are separate acts of actual trafficking five days apart (see HKSAR v NG Yau-kau & Another CACC 374/2007 and HKSAR v LUI Wai-kam CACC 400/2009).  The fact the police did not arrest the defendant after the first time he sold ketamine is not a ground to reduce the sentence.  The police are under no obligation to arrest after the first transaction thereby bringing to a premature end the undercover operation (see NG Yau-kau at paragraph 12).

10.  Giving the defendant full credit for his pleas of guilty he is sentenced on charge 1 to 2 years imprisonment and on charge 2 to 2 years and 8 months imprisonment.  I am satisfied an overall starting point on these two charges would be 5 years imprisonment.  Accordingly I order 1 year and 4 months consecutive and 1 year and 4 months concurrent to charge 1.

Charge 4

11.  Following the guidelines the proper starting points after trial would be 4 years and 6 months for the 18.89 grammes of ketamine and 5 years and 6 months imprisonment for 6.41 grammes of ice.

12.  Mr Tse submits that I should adopt the combined approach to sentence.  I am satisfied the proper approach to sentence is to adopt the ‘individual’ approach (see HKSAR v CHENG Yat-ming CACC 455/2006 as applied in HKSAR v CHAN Ho-wai CACC 129/2008 and HKSAR v KO Ka-hing [2009] 4 HKLRD 856). Whichever approach is adopted the court must give proper regard to totality.

13.  I am prepared to accept the ketamine sold to the undercover police officer may have come from the same supply of drugs found by the police in D1’s home, in particular the sale the day before.  The total ketamine is 35.43 grammes, which would attract a starting point of about 5 years.  Having taking 5 years as the overall starting point on charges 1 and 2, I do not propose to increase the starting point of 5 years and 6 months imprisonment taken for the ice. I am further satisfied the small quantities of nimetazepam and dimethylamphetamine add nothing to the overall criminality of the trafficking charge.

Own use

14.  I am told that D1 is an abuser of ice, taking one gramme per day.  D1 admitted the drugs found in his home were for his own consumption and the equipment found in D1’s home was suitable for inhaling ice.  In the circumstances I am prepared to accept that some of the ice was for D1’s own consumption, D1 admitting the majority was for trafficking.

15.  In deciding how much weight should be attached to the fact some of the ice was for D1’s own consumption I have considered the decision in HKSAR v. WONG Suet-hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34.  I am satisfied a reduction of 6 months imprisonment to one of 5 years is appropriate. Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 3 years and 4 months imprisonment on charge 4.  

Charge 5

16.  I am satisfied the proper starting point after trial for charge 5 is 6 months imprisonment.  Full credit for the plea of guilty reduces the sentence to 4 months imprisonment.  Accepting part of the drugs in charge 4 were for D1’s own consumption, I am satisfied possession of the equipment does not increase the defendant’s overall culpability.I therefore order the sentence to be served concurrent to charges 1, 2 & 4.

Totality

17.  In considering totality of sentence as between charges 1, 2 and 4 the court must reflect the defendant was trafficking in two different drugs, ketamine and ice.  I am satisfied an overall starting point for the three charges is one of 7 years and 6 months imprisonment.  Full credit for pleas of guilty result in a total sentence to be served by the defendant of 5 years imprisonment, which I am satisfied properly reflects the defendant’s criminal culpability on the four charges and gives the defendant a meaningful discount from the courts maximum sentencing jurisdiction of 7 years imprisonment. 

18.  In recognition of the defendant’s sponsorship of three children through World Vision I am prepared to reduce the sentence to be served by the defendant by one month making a total sentence to be served of     4 years and 11 months imprisonment. 

19.  D1 is sentenced as follows:

Charge 1 – 2 years imprisonment

Charge 2 – 2 years and 8 months imprisonment, 1 year and 4 months consecutive and 1 year and 4 months concurrent to charge 1

Charge 4 – 3 years and 4 months imprisonment, 1 year and 7 months consecutive and 1 year and 9 months concurrent to charges 1 & 2

Charge 5 – 4 months imprisonment concurrent to charges 1, 2 & 4

D2

20.  The defendant is 19, 18 at the time of the offence, and a first offender.  Section 109A of the Criminal Procedure Ordinance, Chapter 221 provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  This provision however does not apply to an excepted offence.  I have nevertheless called for a training centre report to provide me with background information on the defendant, warning the defendant that even if training centre was recommended this did not mean I was going to sentence the defendant to detention in a training centre.  The appeal courts have made clear that save in very rare cases a training centre order should not be imposed for trafficking in substantial quantities of dangerous drugs     (see Secretary for Justice v KO Fei-tat [2002] 4 HKC 59). 

21.  The report reveals the defendant left school after completing Form Five but having failed almost all his examinations.  Since leaving school the defendant has attended a short training course run by the Vocational Skill Training Centre. Since then he has had various jobs, none of which have lasted more than two months.  The report details how the defendant has associated with triad peers leading to him taking dangerous drugs as a result of which he resorted to drug peddling to finance his drug habit and lifestyle.  The defendant committed the present offence because he was unemployed at the time and was promised $500 to deliver the drugs.    

22.  In passing sentence I have carefully considered everything said by Miss Wong.  I take into account the defendant is still young, although not of extreme youth and has a clear record. 

23.  The defendant says he does not wish to go to training centre. Although a period of comprehensive disciplinary training is said to be beneficial to the defendant’s rehabilitation I am satisfied this is not one of those very rare cases where training centre would be appropriate.  Although the defendant is young he was willing to sell dangerous drugs in order to earn money to sustain his lifestyle.  For the reasons given in the Secretary for Justice v HII Siew-cheng I am satisfied a deterrent sentence is required.

24.  Taking all these matters into account I am satisfied the proper starting point after trial for 76.21 grammes of ketamine is 6 years and 3 months imprisonment.  Giving the defendant full credit for his plea of guilty he is sentenced to 4 years and 2 months imprisonment on charge 3.