HKSAR v. CHUNG KING YIP

DCCC 514/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 514 OF 2013

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs". The dangerous drugs involved are cocaine, ketamine and methamphetamine hydrochloride (commonly known as ICE).

Summary of Facts

2.  In the afternoon on 22 February 2013, police officers stopped the defendant for a body search in the 15^th Floor lift lobby of Harbour Plaza 8 Degrees situated at No.199 Kowloon City Road, To Kwa Wan.  He refused to be searched in public and requested the search be conducted in Room 1542, to which he had a key card.

3.  The room was searched, but nothing suspicious was found.  The defendant was also searched in Room 1542, and the following items were found in his right front jeans pocket :-

(i) 22 plastic bags which contained a total of 6.11 grammes of a solid containing 4.81 grammes of cocaine;

(ii) 1 plastic bag which contained 0.28 gramme of a powder containing 0.23 gramme of ketamine;

(iii) 1 plastic bag which contained 8 grammes of a solid containing 6.71 grammes of ketamine; and

(iv) 1 plastic bag which contained 0.61 gramme of a crystalline solid containing 0.59 gramme of methamphetamine hydrochloride.

4.  An electronic scale and piles of empty transparent plastic bags were also found in the shoulder bag carried by the defendant.

5.  Under caution, the defendant admitted that the dangerous drugs found on him were to be delivered to others.

Mitigation & Sentence

6.  The defendant is now 35, divorced and unemployed. He has a clear record.  Defence counsel Mr. CHU informed me that the defendant is a drug user.  A letter written by the defendant was placed before me.  The defendant claimed that his wife divorced him due to his poverty.  She also took their daughter (aged 10) with her.  Thereafter, he went to work in Macau.  He returned to Hong Kong when the project was completed, and intended to start anew with his ex-wife and to look after their daughter.  Regrettably, his ex-wife refused to let him see their daughter unless he pays her a sum of money first.  He became depressed and resorted to drug abuse.

7.  Mr. CHU asked for leniency by stressing the defendant's clear record and guilty plea. 

8.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders.

9.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370), ketamine (see  SJ v HII Siew Cheng [2009] 1 HKLRD 1) and ICE (see A-G v CHING Kwok-hung [1991] 2 HKLR 125).  For up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years' imprisonment.  For up to 10 grammes of ketamine, the sentence ranges from 2 to 4 years' imprisonment.  For up to 10 grammes of ICE, the sentence ranges from 3 to 7 years' imprisonment.

10.  In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v YIP Wai-yin & another CACC 80/2003 and HKSAR v CHENG Yat-ming CACC 455/2006.

11.  In the present case, the defendant trafficked in a cocktail of drugs consisting of 4.81 grammes of cocaine, 6.94 grammes of ketamine and 0.59 gramme of ICE.  For 4.81 grammes of cocaine, the appropriate starting point is 3 years.  For 6.94 grammes of ketamine, the appropriate starting point is 3 years.  For 0.59 gramme of ICE, the appropriate starting point is 3 years.  Mr. CHU has rightly suggested that the "combined approach" would arrive at a realistic and fair sentence. 

12.  Although less potent than the ICE, the cocaine found in this case was in a much larger quantity.  I decided that the quantity of cocaine shall form the basis of the starting point.[1] Hence, I adopt a starting point of 3 years' imprisonment and adjust it upward by 18 months for the ketamine and ICE, arriving at 4.5 years.  A one-third discount is given for the guilty plea, reducing the sentence to 3 years.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence I pass is 3 years' imprisonment.