HKSAR v. YEUNG CHUN YIP

DCCC 729/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 729 OF 2010

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Reasons for Sentence

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Charges & facts

1.  The Defendant pleads guilty to trafficking in a dangerous drug, namely 13.50 grammes of powder containing 9.13 grammes of ketamine.  At 5:48 p.m. on 4 April 2010 the police found the Defendant suspicious at Ground Floor, High Block, King Kwai House, Shan King Estate, Tuen Mun, N.T.  A body search on him yielded a transparent plastic bag containing white powder from inside his underpants.  He had $130 cash. 

2.  Upon arrest and caution for trafficking, he said the ketamine was for his own consumption and he intended to sell the leftovers.  The bag of ketamine was bought at $1,100 from a person called “Ah Fai” at Tuen Mun Park less than 2 hours prior to his arrest. 

3.  The estimated street value was $1,620. 

Personal background and mitigation

4.  The Defendant was 18 at the time of offence and is 19 now.  He was educated up to F.3.  He has 2 previous convictions for possession of a dangerous drug in 2009.  He completed a 1-year drug withdrawal programme in a voluntary centre in February 2010.  However, it took him less than 2 months to return to drugs.  The present offence was in breach of the 18 months’ probation.   

5.  His natural father had left him when he was 5 years of age.  He lived with his mother and stepfather.  His mother had a busy working schedule to earn enough to keep the family and to repay his natural father’s debts.  She suffered depression.  He started to consume drugs since 2008.  He committed the present offence to support his addiction. 

6.  The Medical Officer of the CSD is of the opinion that he is a drug dependant.  He is not suitable for detention in the Training Centre.

Sentencing guidelines

7.  The Court of Appeal in Secretary for Justice v. Hii Siew Cheng [2009] 1 HKLRD 1 has laid down sentencing guidelines 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 1,000 grammes - 12 to 14 years’ imprisonment; and

(7) over 1,000 grammes - 14 years upwards.

8.  The total weight of ketamine in the present case, 9.13 grammes, falls in the band of 2 to 4 years’ imprisonment. 

Sentencing this Defendant

9.  The Defendant was both a consumer and seller of the drug.  I take a starting point of 3½ years’ imprisonment.  I reduce it by one-third because of his guilty plea.  The sentence is 2 years and 4 months.  The subsisting probation orders in TM/4865/08 and TM/121/09 are hereby discharged.      

Clarification on Reasons for Sentence

10.  Before the publication of the Reasons for Sentence, there is a point which I wish to clarify.  The Particulars of Offence refer to 9.13 grammes as the quantity for trafficking.  I understand that upon being cautioned, the Defendant had said that the drug was for self-consumption and the left-overs would be for trafficking. 

11.  In HKSAR v. Chan Wai-kong MA 1057/2000, the appellant’s counsel had told the magistrate that he would refer to entrapment as a mitigating factor in the next hearing upon obtaining the Background and the DATC Reports.  The return hearing was conducted by another counsel before another magistrate.  The Background Report referred to a complaint of entrapment but the mitigation in court did not address the point any further.  The appellant submitted on appeal that the magistrate had failed to take into account entrapment as a mitigating factor.  Deputy Judge McMahon (as he then was) did not agree with the submission.  He said at para. 13:

“In short, as a general principle, it seems to me that where a defendant following his plea of guilty to an offence and agreement to brief facts presented to a court wishes to … urge upon the sentencing court a particular view of those facts, the initiative must rest with him to expressly bring … his desire to rely upon that particular view of those facts to the attention of the sentencing court…. That is the responsibility of the defendant and those representing him.”

12.  The defence has made no submission that I shall take a quantity significantly less than 9.13 grammes as the quantity for trafficking.  The present sentence is based on the view that a significant part of the drug was for trafficking, which echoes the wording of the Particulars of Offence.