HKSAR v. ZHANG NANFENG

DCCC634/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 634 OF 2010

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.  The dangerous drugs in question was examined by the Government Chemist and found to be 9.67 grammes of a powder containing 7.7 grammes of ketamine.

3.  Facts admitted by the defendant disclose that at 2315 hours, on 29 April 2010, the defendant was stopped by a Customs officer whilst using the green channel at the Customs Arrival Hall, Lok Ma Chau Control Point. She had just arrived from Shenzhen (Huanggang). After being stopped she was taken into a search room at the Customs Arrival Hall for an intimate search. The dangerous drugs in question was found inside a plastic zip lock bag inside her bra. The defendant admitted immediately that the bag contained ketamine.

4.  She was arrested, and under caution she admitted that she had brought in the powder from China. In a subsequent interview she admitted buying a quantity of ketamine in Shenzhen earlier and decided to take some of it with her to Hong Kong for self consumption.

5.  The defendant is now aged 29 years. Defence counsel has submitted that although the antecedent statement of the defendant indicates that she is divorced and a drug addict, this is not correct. Her husband is in court today to show his support to her.

6.  The defendant is from Mainland China. She married her husband in Hong Kong in 2005. However, as she did not have the right to reside in Hong Kong she lived and worked in Shenzhen, working as a cosmetics sales girl, earning RMB3,000 a month, of which she would give RMB1,000 to her mother. In January of 2010 she was granted a one-way permit to live in Hong Kong and came here to live in Hong Kong. She lived with her husband and his family in a small public housing unit in Ma On Shan. She was unable to find employment, and she felt under pressure.

7.  She had no friends here in Hong Kong. She would visit her friends in China, and under their encouragement took ketamine since November of 2009 to relieve her stress, although not regularly. On this occasion she brought some ketamine back to Hong Kong, after a visit to Shenzhen, for her own use to help her relieve the pressure she was under should she need it. She brought a larger quantity because it was cheaper. When arrested she had said, under caution, that the drugs were for her own use.

8.  Counsel for the prosecution has indicated that the prosecution has no evidence to the contrary. Although her husband said that he would divorce her when this matter first came to light, he has since accepted her remorse, and he and his family are now supportive of the defendant. The defendant has a clear record.

9.  The sentencing tariff for trafficking in ketamine laid down in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, for 1 gram to 10 grammes the sentence ranges from 2 to 4 years' imprisonment. Here the quantity is 7.7 grammes of ketamine. The appropriate starting point would be 39 months’ imprisonment.

10.  A clear message must be conveyed to the public that drug trafficking is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment. Hong Kong has to take stringent measures to clamp down on the flow of dangerous drugs from across the border.

11.  The Court of Appeal in HKSAR v Chow Kam Lung, CACC68/2010, said at page 3 of the judgment:

“8: Section 2 of the Dangerous Drugs Ordinance defines ‘trafficking’ as including:

‘...importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drugs, or possessing the dangerous drug for the purpose of trafficking, and “traffic in dangerous drug” (販運危險藥物)shall be construed accordingly. [our emphasis]

9: Importing a dangerous drug, therefore, whether it is for the purpose of later dealing in the drug or for personal consumption, constitutes the offence of trafficking.  In this regard, in giving the judgment of the Court of Appeal of England and Wales in R v Brian Meah and Philip John Marlow, [1991] 92 Cr App R 254,  at 256, Jupp J rejected the contention that importation for personal consumption was to be treated in substance as an offence of mere possession.  He said:

‘Importing is a distinct offence from possessing.  The penalties are different, and in our view it is not right to say that this must be treated simply as a case of possession.’

10: That being said, the issue of whether a drug is imported for personal consumption, in part or whole, is very much a factor to be taken into account in mitigation of sentence.  Penlington JA, giving the judgment of the court in R v Chan Mung Lung [1992] 2 HKCLR 127, at 130, described it as a strong mitigating factor.”

12.  The Court of Appeal indicated that there should be a further reduction to reflect the strong mitigating factor that the drug was solely for the appellant’s own use, while at the same time reflecting the intention of the legislature that importation of the dangerous drugs, whatever the purpose, constitutes the offence of trafficking, an offence of greater culpability than simple possession.

13.  Here, as I have said, the appropriate starting point is 39 months imprisonment taking into account the quantity of ketamine involved. I would discount this by the usual one-third to reflect her plea and clear record. I accept that the drugs in question were for her own use and warrants a further discount of sentence, and I would give the defendant a further discount of 6 months.

14.  Defendant is sentenced to 20 months’ imprisonment.

15.  Counsel has submitted that this sentence should be suspended. I have considered whether there are grounds to warrant suspending the sentence. I do not see any. The defendant is sentenced to 20 months' imprisonment.