HKSAR v. CHEN FUK CHIN

DCCC85/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 85 OF 2009

----------------------

----------------------

--------------------------------------------

Reasons for Sentence

--------------------------------------------

1.  The defendant has been convicted on his plea of one charge of trafficking in dangerous drugs, namely, 56.79 grammes of a powder containing 25.01 grammes of ketamine, on 5 December last year.

2.  The facts are completely straightforward.  The police conducted an anti-dangerous drug operation on the building where the defendant lives with his family and they spotted him that night walking furtively towards the 5th floor of the building, intercepted him, searched him and found the drugs in question in two plastic bags in his jacket pocket.  Under caution the defendant said, “Ah Sir, Ah Kuen told me to take the stuff to Ah Lung.  He would give me $500.  It’s nothing to do with me.”  In a subsequent interview he confirmed those facts.

3.  The defendant is 21 years of age and he has one relatively minor previous conviction, which is of no relevance for present purposes.

4.  Mr Tam has submitted in mitigation that the defendant did not receive any income from his job the month before this offence was committed because, so I am informed, the defendant’s income depended on how much work he did in a particular month and in that month there was no work for him to do.  I have also received letters from the defendant’s parents, which speak well of him as a filial son who contributed regularly to the household expenses, and also from his girlfriend who is 2 months’ pregnant by the defendant and she also speaks well of him, as do his colleagues.

5.  The courts in Hong Kong take a very serious view of the offence of trafficking in dangerous drugs and that applies equally to so-called recreational drugs such as ketamine.  These drugs ultimately cause many problems and a great deal of dislocation and unhappiness in the community and it is for that reason that such heavy sentences are imposed, precisely with the aim of deterring people like the defendant from agreeing to deliver these drugs for what might appear to be “easy money” by making the price to be paid, if he is caught, a very heavy one.

6.  It is no excuse at all, nor is it in any sense mitigating that the defendant had not earned anything from his job in the month previous to December last year.  Many people experience financial difficulties of one sort or another all the time, and they have to find lawful ways of dealing with that situation.

7.  The updated guidelines from the Court of Appeal for trafficking in ketamine are set out in Secretary for Justice v Hii Siew Cheng [2008] 1 HKLRD 1 and the relevant sentencing band suggests that for a quantity of narcotic of between 10 and 50 grammes a starting point of 4 to 6 years’ imprisonment would in the normal way be applicable.  The guidelines are not a straitjacket.  They can be departed from for good reason but there is no good reason on the facts of this case for departing from them.  The defendant took a huge risk and was caught.

8.  I have adopted a starting point of 4 years and 9 months’ imprisonment for the quantity of ketamine the defendant was trafficking, namely, 25.01 grammes.  For his plea of guilty and his co-operation with the authorities, which he undoubtedly did display, he is entitled to the normal one-third discount which reduces the starting point to 38 months’ imprisonment.

9.  In all the circumstances of this case - I have in mind particularly that he is a relatively young man and has in effect a clear record for present purposes - I am discounting that by a further six months and I sentence the defendant to a total of 32 months’ imprisonment.