HKSAR v. CHAN SIU HANG

DCCC 1267/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1267 OF 2008

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Reasons for Sentence

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The charges and facts

1.  The defendant pleads guilty to the charges of trafficking in a dangerous drug, ketamine.  In the evening of 20 October 2008, Customs Officers saw him acting suspiciously on Ming Fung Street, Wong Tai Sin, Kowloon.  They stopped him for a search, which yielded 2 resealable plastic bags containing a total of 26.06 grammes of a powder containing 21.84 grammes of ketamine from his underpants.  Upon being arrested and cautioned, he said he would give some of the ketamine to his friends if his friends asked for it.  This constitutes the 1^st Charge.   

2.  He was escorted to his home at Room A, Flat F, 3^rd Floor, No. 51 Ming Fung Street, for a search.  Inside were found on a table:

(1)  a brown paper bag which contained 6 resealable plastic bags containing a total of 121.04 grammes of a powder containing 100.73 grammes of ketamine; and

(2)  a black plastic bag which contained a pile of resealable plastic bags and 2 electronic scales.

This constitutes the 2^nd Charge.

D1’s personal circumstances

3.  He is 23 years old.  He has one previous conviction for possession of a dangerous drug in 2008.  He was sentenced to Drug Addiction Treatment Centre.  His last job was as a waiter for a monthly salary of $8,000.  He is single but has a daughter, now aged 1 ½ who is in the charge of his mother.  His father already died 10 years ago.  He started to take ketamine since 2004.  Since 2007, he has formed the habit of taking 5 to 6 times of ketamine per day.  Each time he took 1 gramme.

4.  He would give some ketamine to his friends if they asked for it.  He had no specific quantity in mind as to how much to give them.  One of the electronic scales was defective whereas the other, which was found with no trace of ketamine, was never used by him.   

The sentencing guidelines

5.  On 6 June 2008, some time before the offences here, the Court of Appeal in Secretary for Justice v Hii Siew Cheng CAAR 7/2006 had laid down new sentencing guidelines for trafficking in ketamine in place of HKSAR v Lee Tak-kwan Cr App 177/1997 as follows:

(1)  up to 1 gramme – within the sentencer’s discretion;

(2)  over 1 gramme to 10 grammes – 2 to 4 years’ imprisonment;

(3)  10 to 50 grammes – 4 to 6 years’ imprisonment;

(4)  50 to 300 grammes – 6 to 9 years’ imprisonment;

(5)  300 to 600 grammes – 9 to 12 years’ imprisonment;

(6)  600 to 1000 grammes – 12 to 14 years’ imprisonment; and

(7)  over 1000 grammes – 14 years upwards.   

The sentence I pass

6.  Despite what D1 alleged of his self-consumption, the quantities of drug and the packaging involved posed a real concern for the latent risk of distribution to drug-users.

7.  The 1^st Charge involved 21.84 grammes of ketamine.  It falls within the range of 4 to 6 years’ imprisonment according to Hii Siew Cheng (supra).  I shall take a starting point of 4 years and 6 months.  I give a one-third discount for the plea of guilty.  There are no other mitigating factors.  The sentence is to be 3 years. 

8.  The 2^nd Charge involved 100.73 grammes of ketamine.  It falls within the range of 6 to 9 years’ imprisonment according to Hii Siew Cheng (supra).  I shall take a starting point of 7 years.  I give a one-third discount for the plea of guilty.  There are no other mitigating factors.  The sentence is to be 4 years and 8 months. 

9.  On totality I order the sentences to be concurrent.  He is to serve an imprisonment of 4 years and 8 months as a whole.