HKSAR v. CHOW YIU KEUNG

DCCC243/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 243 OF 2011

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Reasons for Sentence

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1.  The defendant was convicted upon his guilty pleas of two charges of trafficking in a dangerous drug, that is Charge 1 and Charge 2, and a charge of possession of a dangerous drug, Charge 3.

2.  In sentencing, I take into account the whole circumstances of the case, including its nature and facts, in particular, the nature and quantity of the dangerous drugs concerned, background of the defendant and mitigation put forward on his behalf by defence counsel.

3.  The case involved three separate incidents and the facts in this case are all simple.  I will outline the facts in relation to each incident according to their chronological order.

Charge 3

4.  At about 0020 hours on 18 December 2010, police officers were conducting licence check at bars inside a building.  When the defendant saw the police officers in the staircase he fled, and at a staircase about 16th Floor, he dumped onto the floor what later confirmed to be four plastic bags containing a total of 5.57 grammes of powder containing 3.78 grammes of ketamine.

5.  He was then stopped by police officers and the above said items were seized.  Under caution the defendant admitted that the stock was bought for his own consumption and asked for a chance.

6.  Upon search a folded banknote containing what later confirmed to be 0.19 grammes of powder containing 0.14 grammes of ketamine was found inside the pocket on the left sleeve of his jacket.

7.  When he was interviewed under caution he admitted that he had dumped the above first mentioned bag of drugs and that it was “K-Chai”.  He said he bought it at $1,200 from a friend called “Ah Chu” about three days ago.

8.  He went to the building that evening with friends. He went to the staircase intending to consume the drug.  He believed that ketamine found on his person was left over of his last consumption.

Charge 1

9.  Five days later on 23 December, when police officers were conducted vertical patrol in a domestic building, they found concealed inside a water hydrant at the staircase, a plastic bag containing 15 small plastic bags, containing later confirmed to be 25.53 grammes of a powder, containing 17.89 grammes of ketamine.

10.  They laid ambush.  In the evening the defendant appeared and approached the said water hydrant.  He took the said dangerous drugs and put it into a pocket of his jacket.  When he was then going upstairs, he was intercepted and arrested for the offence of trafficking in a dangerous drug.

11.  Under caution, he admitted to be intending to sell the “K-Chai” to others, in order to earn some money for spending and that he, himself, was not a drug consumer.

Charge 2

12.  In the house search later conducted at his home upstairs, four plastic bags containing what later confirmed to be 4.25 grammes of powder, containing 3.41 grammes of ketamine were found.

13.  The defendant was arrested for trafficking in a dangerous drug.  Under caution he admitted the dangerous drug found belonged to him and he intended to sell the “K-Chai” for a profit. 

14.  Defendant is 19 years of age.  He was born in the mainland and settled to live in Hong Kong in 1998.  He was living with his parents and an elder brother.  He had received no education in the mainland.  In Hong Kong he studied up to form two and started to work afterwards. 

15.  He has worked in a various odd jobs and had been a kitchen apprentice.  He was unemployed a few months before the present incidents. I was told that the defendant committed the offences, since he was want of money and wanted to earn some money quick and easy.

16.  I was told that the defendant is now remorseful. A District counselor wrote to the court saying that he is satisfied, from reading letters of the defendant, that he is remorseful and asked for a lenient sentence on his behalf. 

17.  The parents of the defendant also wrote and told the court that the defendant had turn wayward probably because of lack of supervision since both of them had to work long hours to earn a humble living.  The family is still very supportive of the defendant and willing to assist him to reform.  

18.  Learned counsel for the defence urged the court to impose a sentence as lenient as possible, stressing that a long sentence would expose this young man to more risks of the association with the undesirables and thereby affecting his chance of rehabilitation.

19.  The defendant is a first time offender.  It is sad, yet again, to see a young man engaged in such a serious offence, which would cause serious harm to others and the community as a whole. 

20.  The dangerous drugs the defendant trafficked in was ketamine.  The narcotic content of the dangerous drug found in relation to Charge 1 was 17.89 grammes and that in relation to Charge 2 was 3.41 grammes.

21.  In the case of SJ v Hii Siew Cheng, CAAR 7/2006, the Court of Appeal indicated a tariff for sentencing for traffickers in such dangerous drug.  If the quantity of ketamine trafficked is 1 to 10 grammes, the sentence to be considered is 2 to 4 years’ imprisonment.  If the quantity is 10 to 50 grammes the sentence to be considered is 4 to 6 years.

22.  In all the circumstances, I am on the view that imprisonment term is warranted for the trafficking charges.  Despite the defendant is only 19 years of age and this is the first time he is convicted of any offence, the court has consistently held that for the offence of trafficking in dangerous drugs, unless it is a case of extreme youth, youth generally is not a reason to reduce the sentence.  Deterrence is an important factor in sentencing for this nature of offence and the court should not only give regard to the rehabilitation needs of the defendant. 

23.  If any precedents are required I am going to cite R v Lau Tak Ming [1990] 2 HKLR 370, AG v Suen Yuet-ming [1989] 2 HKLR 403, R v Yiu Kwong-shui, CACC 377/1995. 

24.  The defendant is not a person of extreme youth. Besides, the court cannot ignore the facts that after having committed an offence of possession in dangerous drug, when he was on bail the defendant committed the much more serious offence of trafficking.

25.  Having considered the whole circumstances including mitigation put forward on the defendant’s behalf I do not considered there exists sufficient reasons not to follow the tariff. 

26.  In Lau Tak Ming, the Court of Appeal said that, within the suggested bands, the court should take into account the following factors.  The profit which may reasonably be expected; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender and his previous history of narcotic offences.

27.  In all the circumstances I consider the following starting points appropriate for the two trafficking charges.    

Charge 1: 4 years;

Charge 2: 2½ years.

As regards the possession charge, Charge 3, in the light of the sentences I am to impose for the other charges, no DATC report is required before sentencing.

28.  Defendant was in possession of four bags containing 5.76 grammes of a powder, containing 3.92 grammes of ketamine.   He claimed that all of them was for his own consumption, there is no evidence to prove otherwise.  He is convicted of the offence of possession only. 

29.  However, taking into account the quantity which is not insignificant, and that the defendant was present in the premises where there were bars, I found that the latent risk is high in this case.

30.  In all the circumstances, bearing in mind at that time the defendant had committed no offence before, I adopt a starting point of 12 months. 

31.  The defendant pleaded guilty.  He is entitled to a one-third discount.  Having considered the whole circumstances and mitigation submission.  I am of the view that this is the extent of discount the defendant is entitled to in this case.

32.  Based on the matters aforesaid, I sentence the defendant to 32 months’ imprisonment for Charge 1, 20 months’ imprisonment for Charge 2, and 8 months’ imprisonment for Charge 3.  Taking into account totality, I am of the view that a notional overall starting point of 57 months sufficient and appropriate in all the circumstances of the case.

33.  To give effect to it, I order the sentence imposed on Charge 1 and Charge 2 to run concurrently and 6 months of Charge 3 to run consecutively to aggregated sentence of Charge 1 and Charge 2.  

34.  The defendant is to serve a total sentence of 38 months’ imprisonment.