HKSAR v. KWONG YAN KIN

DCCC833/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.833 OF 2010

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Reasons for Sentence

1.  The defendant faces one charge of trafficking in a dangerous drug, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. The defendant pleaded guilty to the charge, admitted to the amended summary of facts and was duly convicted.

Summary of facts

2.  On 11^th June 2010 at about 7:48pm, the defendant entered Hong Kong from mainland China through the Green Exit of Lo Wu Control Point, New Territories.

3.  Customs officer (PW1) instructed his colleague (PW2) to intercept and search the defendant. PW1 and 2 took the defendant to Search Room no.261 of the Customs Arrival Hall.

4.  In the presence of PW1, PW2 found a plastic bag containing another plastic bag containing suspected dangerous drugs (exhibit 1) under the insole of the defendant’s left running shoe. PW2 asked the defendant what it was and the defendant answered that it was Ketamine for his own consumption. PW2 arrested and cautioned the defendant. Under caution, the defendant asked PW2 to give him a chance.

5.  In the subsequent cautioned interview, the defendant admitted that he purchased the drugs from Shenzhen from RMB600.

6.  Government Chemist confirmed that exhibit 1 contained 11.59g of a powder containing 9.22g of Ketamine.

7.  At the time of arrest, the defendant had HK$1,310 and RMB94.50 in cash on him.

8.  Customs estimated that the street value of exhibit 1 would be about HK$1,356.03.

Previous convictions

9.  The defendant has 3 previous convictions, 2 being for possession of dangerous drugs, with the last in 2007.

Mitigation

10.  The defendant is 37 and was born in Hong Kong. He resides in Tin Wan Estate on Hong Kong island. The defendant was educated up to F.3 level in Hong Kong. He was working as a construction site carpeting worker, earning around 10K per month. He contributed around 4-5K to his mother of 70 for the upkeep of the family. The defendant has an elder brother who’s married and living apart. His elder sister has mild mental problem. Since the defendant’s arrest, his elder sister has taken up the role of the family breadwinner. The defendant’s mother suffers from hypertension and old age related illnesses.

11.  The defendant was cooperative after his arrest. He has pleaded guilty. The defendant is very remorseful and wished to plead guilty as early as last week.

Sentencing guidelines

12.  Sentencing guidelines for trafficking in Ketamine is found in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006:

“95. We indicate the following tariffs for sentence after trial for traffickers in ketamine and ecstasy:

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

Sentence

13.  This is a case of trafficking in Ketamine. The guideline sentence in Hii Siew Cheng applies. I have heard from Mr. Bok the defendant’s mitigation but I see no special grounds that would allow me to depart from the guideline sentence.

14.  I will adopt a starting point of 45 months' imprisonment. I will grant the defendant the full 1/3 discount in recognition of his guilty plea and reduce this sentence to that of 30 months’ imprisonment.