HKSAR v. KONG CHEUK YIN

 DCCC1137/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1137 OF 2009

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Reasons for Sentence

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1.  Defendant, you pleaded guilty to a single offence of trafficking in dangerous drugs, contrary to sections 4(1)(a) and 3 of the Dangerous Drugs Ordinance, Cap.134.

2.  You admitted the facts and I convicted you. The Brief Facts were as follows.

3.  At about 0050 hours on 4 September last, police officers conducted a licence check at Touch Bar in Carnarvon Road, Tsim Sha Tsui. Sergeant 52973 (PW1) was walking along the corridor when he saw three males including you come out from a room. They said they wanted to go to the washroom but PW1 was suspicious because there was a washroom inside that room. He ordered you all back into that room.

4.  At about 0105 hours PC34209 (PW2) searched you and found 3 transparent plastic bags in your jeans pocket. E1 contained 24 plastic bags containing ketamine. E2, 10 plastic bags containing cocaine and E3, 17 foilpacks containing 47 tablets of nimetazepam.

5.  You were then arrested by PW1 and under caution remained silent.

6.  Later, analysis revealed the following. The 24 plastic bags contained 21.79 grammes of a powder containing 18.21 grammes of ketamine. The 10 plastic bags contained 2.58 grammes of a solid containing 2.04 grammes of cocaine and the 17 foilpacks contained 47 tablets which in turn contained 0.36 grammes of nimetazepam.

7.  On your behalf Mr McGuinniety admitted the three previous convictions, two of which were drug-related. Those two drug-related offences led to a period of imprisonment and DATC.

8.  On your behalf Mr McGuinniety entered mitigation. He told me that you are 24 years of age, single but engaged to be married and had worked in a garage earning approximately $6,000 per month. My attention was drawn to the presence in court of your father, your grandmother and your fiancée who are here to support you.

9.  Mr McGuinniety whilst not making a major issue of the fact informed me that some of the drugs would have been used for self-consumption. He realistically accepted of course that the remainder would have been for sale. On your behalf, Mr McGuinniety expressed your remorse. This has been demonstrated in a practical way by your early plea of guilty.

10.  I am informed and there was some support for this view that you have now realized that you do not wish to spend the rest of your life in and out of prison by involving yourself with drugs. I am also told that it is your intention upon release to marry your fiancée who is standing by you in these circumstances.

11.  Mr McGuinniety referred to the case of HKSAR v Ng Chun Fai DCC634/2009, which is my own case. However, I do make the point that the nature of the drugs involved in that case was somewhat different than the present case. In the present case I am dealing with just over 2 grammes of cocaine and just over 18 grammes of ketamine. Were those drugs to stand alone, a starting point for the former is 2 to 5 years and for the latter 4 to 6 years. And nimetazepam being of a relatively small quantity, I am prepared to merge it with the rest of the drugs.

12.  I do accept that some of these drugs would have been used for your own consumption. But of course it is almost impossible to estimate the proportion. Having said that, and Mr McGuinniety has faced up to this, as a serious offence. The fact that your family is here to support you is encouraging. However, I do note that you have had a history of involvement with dangerous drugs although this is your first offence of trafficking.

13.  I resolve that I will be as lenient as I possibly can, consistent with my duty to deal with drug traffickers. I base this on the hope and expectation that your remorse is both genuine and realistic, based upon the desire not to spend the rest of your life in and out of institutions. Therefore, I take as a starting point of 4½ years’ imprisonment, reduced to 3 years, that is 36 months. You will go to prison for 36 months.