HKSAR v. TOI CHUN

DCCC622/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 622 OF 2010

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Reasons for Sentence

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Charge

1.  The defendant pleaded guilty to a charge of trafficking in a dangerous drug, namely 23.45 grammes of a powder containing 19.74 grammes of ketamine. 

Facts

2.  The facts of the case can be summarized as follows.

3.  At about 5.42 pm on 29 March 2010 when the defendant reached the Customs Arrival Hall at Lo Wu Control Point, she was selected by the customs officer for search.  Upon search, two ziplock bags, one plastic straw and one folded $20 banknote were found inside the brassiere worn by the defendant.  23.45 grammes of a powder containing 19.74 grammes of ketamine were found inside the ziplock bags and the folded $20 banknote. 

4.  The defendant was then arrested.  Under caution, she admitted that the dangerous drug was ketamine and that she had bought the same in Shenzhen for $1,000 odd and intended to have the same for self-consumption.

The defendant’s background and mitigation

5.  The defendant is aged 35, a divorcee.  She has two daughters aged 10 and 12 whose custody had been granted to her ex-husband. After divorce and in 2004 she became a prostitute and claimed to have earned a monthly income of a few tens of thousands dollars even up to the present time. At the same time and under the influence of undesirable peers, she began to take ketamine and became addicted to it.  Very soon, she was arrested for possession of ketamine and was fined $2,000 at the magistracy. 

6.  In 2007 she invested in sales products of aroma oil and had lost half a million dollars.  Facing the adversity, she indulged herself in ketamine and had become a habitual user.  Although she was not the caregiver of the two daughters, she tried very hard and made great effort to contribute financially towards their education and living expenses.

7.  Insurance documents including receipts and invoices were produced by the defendant to show that as early as in 2002 she had taken up insurance policies for education funds for her two daughters.  The annual premium came up to almost $29,000 at present.  Besides, the defendant had also subscribed a saving linked insurance scheme with her daughters as beneficiaries of the scheme. 

8.  After being arrested on 29 March 2010 the defendant was admitted to the Queen Elizabeth Hospital on 31 March for ketamine misuse and with complaints of recent hallucination and suicidal idea. According to the medical reports of the Queen Elizabeth Hospital, it would seem that she was all along an occasional ketamine user since 2004 and had become daily user since 2008. 

9.  After the defendant was discharged from the Queen Elizabeth Hospital, regrettably, she continued to take drugs as revealed by the medical memo of New Town Medical Centre on 20 May 2010.  

Trafficking or self-consumption

10.  The question as to whether the defendant intended to use the ketamine for her own consumption has to be considered and decided by this court.  It was an important issue relevant to the sentence to be imposed.  The defence claimed that despite the quantity of the ketamine involved, they were for the defendant’s own use. 

11.  Nevertheless, the prosecution conceded that due to the importation of the ketamine into Hong Kong from China, the defendant was in fact liable to be prosecuted for trafficking in dangerous drugs. There was no evidence to suggest that the dangerous drugs found on the defendant were for trafficking purpose in Hong Kong other than for self-consumption.  It would seem that the prosecution has accepted the defence contention that the dangerous drugs were solely for her own consumption.

12.  In view of this and the following reasons for sentencing consideration, this court sees no necessity to hold a Newton Inquiry on this issue.  However, to determine whether to accept the defendant’s contention, all relevant circumstances and factors have to be carefully considered and scrutinized by this court, including those suggested by the Court of Appeal in HKSAR v Wong Suet Hau and another CACC366/2000 and 487/2000. 

13.  It was undisputed that the defendant was a drug addict since 2004.  She had a previous conviction of possession of a dangerous drug in the same year whereby she was fined $2,000.  Defence lawyer submitted that the defendant quitted her drug habit after this conviction at one stage but became a regular user since 2008 after her investment in aroma oil failed. However, the defendant claimed to the medical officer at Queen Elizabeth Hospital that she was all along a ketamine user but had become a daily user since 2008 after being cheated for money. 

14.  On the day of her arrest, she was found loitering at the checkpoint area and had attracted the attention of the Customs & Excise officers.  Consequently, she was being selected for search by them.  It was found on her: (1) one $20 banknote containing 0.13 gramme of a powder containing 0.11 gramme of ketamine; (2) one plastic bag containing 10.79 grammes of a powder containing 9.11 grammes of ketamine; and (3) a plastic bag containing 12.53 grammes of a powder containing 10.52 grammes of ketamine.

15.  Upon arrest, the defendant revealed that $1,000 odd was used to purchase the said drug found on her.  Although the quantity of ketamine in this case was 23.45 grammes of a powder containing 19.74 grammes of ketamine, there was no evidence to suggest that the value of the drugs was not $1,000 odd as claimed by the defendant.  The value of the drugs was by no means unaffordable. 

16.  Under caution, the defendant admitted that the drugs were for her own consumption.  Search conducted at her residence found no packing paraphernalia associated with the drugs.  There was no other evidence to suggest that the drugs were for trafficking purpose in Hong Kong nor intention to deal with the drugs other than self-consumption. 

17.  Having considered all the surrounding circumstances, this court accepts, though reluctantly, that the importation was for self-consumption. 

Sentence tariff

18.  Sentence tariff for trafficking in ketamine after trial was clearly set out by the Court of Appeal in Secretary for Justice v Hii Siew Cheng CAAR7/2006.  The sentence range for 10 to 50 grammes of ketamine would be 4 to 6 years’ imprisonment.  As it was accepted that the drugs were for the defendant’s self-consumption, the court would adjust the sentence to reflect this fact. 

19.  On the basis of the total weight of the ketamine involved, i.e. 19.74 grammes, this court will adopt a starting point of 51 months for the charge.  Having taken into consideration of the background of the case and of the defendant, mitigation advanced by the lawyer and the strong mitigating factor of self-consumption and her admission from the outset that the drugs were for self-consumption, this court will reduce the term to 2 years’ imprisonment.