HKSAR v. YIU YEE CHUEN

DCCC 540/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 540 OF 2014

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

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

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

Reasons for Sentence

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

1. Defendant, you have pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2. The facts of this case are very straightforward.  On 17 April this year, at about midnight, two police officers were on patrol.  They saw you and two other males in a basketball court outside Tin Wan House, Shun Tin Estate, Sau Mau Ping.  When they approached you, they saw you and the other males leave.  However, one officer saw you place something in a flowerbed nearby.  You and the two other males were intercepted and searched.  Nothing was found on your person.  Where the officer saw you put something in the flowerbed, he found a plastic bag containing 92 small packets of powder. 

3. You were arrested.  Under caution, you said that the packets did not belong to you.  There are no admissions of guilt from you. Your house was searched not long after where nothing incriminating was found.   

4. The drugs in this charge and found in the bag include 10.48 grammes of a powder containing 8.8 grammes of ketamine.  The street value of this amount of ketamine is approximately $1,300.  You had a small amount of cash on you and no mobile phones.

5. Your best mitigation today is your plea of guilty.  You are not a man of clear record.  You have previous convictions of which three relate to drug offences.  In 2009, you were convicted at the same time of two trafficking dangerous drugs offences.  In 2014, you were sentenced to 2 months’ imprisonment for possession of dangerous drugs.  Sadly, it seems you have not learnt your lesson; learnt the lesson that drugs lead to the inevitable consequence of court and imprisonment.

6. You are 27 years old, single and live with your family.  I have heard that your education level is of Form 2 standard and you work as a cook on a casual basis, and although you look healthy, you have as a result of drug addiction developed urological issues.  I have been told that you have been on and off drugs, ketamine and “Ice” for over 10 years. 

7. I have also been told that this amount of drugs was bought packaged this way by you on that day.  You had intended to sell some and consume some yourself.  You do not go as far as quantifying how much you would sell and how much you would consume, but some of it was for your own use.  The prosecution do not challenge this submission and remain neutral on the mitigation that some of it would be for your self-consumption, not all for sale.  Defence counsel has said all he can say on your behalf.

8. For trafficking ketamine, there are guidelines the court will adhere to, and I follow the authority of the Secretary for Justice v Hii Siew Cheng [2008] 3 HKCC 323.  The relevant guideline would be where between 1 to 10 grammes of ketamine is trafficked, an appropriate starting point would be between 2 to 4 years. 

9. Mathematically speaking, 8.8 grammes should attract a starting point of about 3 years and 9 months.  However, I accept your mitigation and can see from your previous record that you have a drug habit and that some of this ketamine would be for your own use.  I will reduce the appropriate starting point by a percentage to reflect that some of the ketamine would be for self‑consumption.

10. I have considered the authority of HKSAR v Chow Chun Sang CACC 135 of 2011 which discussed in some detail how the court should approach cases where the defendant claims some of the drugs was for his own consumption and the rest for trafficking.

11. I would have taken a starting point of 3 years and 9 months but I now reduce that by 20 per cent. I do that because I have taken into account the nature of the drug, the total quantity, what you, the defendant, says would be for self‑consumption, and how organised and premeditated the trafficking is as well as your background. Therefore, with that additional reduction, the starting point would be 3 years’ imprisonment.  Your plea will entitle you to a further discount of one-third.

12. Stand up, Defendant, please.  After that discount, for this offence, you are sentenced to 2 years’ imprisonment.  Do you understand that sentence?

DEFENDANT: Understood.