HKSAR v. CHENG TSZ KIT

DCCC1334/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1334 OF 2009

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Reasons for Sentence

1.  The defendant faces one charge of trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. It is alleged that the defendant on 5^th October 2009, outside Room 3016, 30^th floor, Un Nga House, Un Chau Estate, Cheung Sha Wan, Kowloon, Hong Kong, unlawfully trafficked in a dangerous drug, namely 144.48 grammes of a solid containing 107.03 grammes of Ketamine and 27.37 grammes of a powder containing 4.28 grammes of Ketamine. The defendant pleaded guilty to the charge, admitted to the summary of facts and was duly convicted.

Summary of Facts

2.  At about 5:14pm on the charge date, police officer spotted the defendant leaving room 3016 in a furtive manner. The defendant was stopped and searched. Inside his left trousers pocket, the police officer found 1 black plastic bag which contained 11 plastic bags. Inside those 11 plastic bags were the dangerous drugs that the defendant is being charged with.

3.  The defendant was arrested for the offence of trafficking in dangerous drugs. Under caution, he admitted that he would sell the Ketamine to others to make some money.

4.  A video recorded interview was later taken from the defendant. Under reminded caution, the defendant, inter alia, admitted that he bought the dangerous drugs from “Ah Keung” the day before his arrest at around 7-8pm for $11,000 cash. The defendant then brought the Ketamine back to his home at room 3016. He consumed some of it and intended to sell the rest of the Ketamine to his friend Ah Kai for $13,000.

Mitigation

5.  The defendant was of clear record. He is 22 years old, single, educated up to form 3 level. His parents divorced when he was 10 and the defendant lived with his father in public housing. The defendant’s elder sister lives with his mother. The defendant’s father passed away in 2007 and since then the defendant had been living alone. At the time of the arrest, the defendant was working as a transportation worker, earning about $10,000 per month. The defendant contributed about $4,000 each month to his mother who is 63 years old and unemployed.

6.  Counsel for the defendant pointed out that the defendant had confessed right after his arrest and he had indicated to the prosecution of his intention to plead guilty to the charge as early as 3^rd May 2010, thus saving valuable time and resources.

7.  The defendant said he committed the offence because at that time work was slow and he was under heavy financial pressure. I was not told why he was under heavy financial pressure. The defendant was hoping to make a $2,000 profit from the sale but was arrested before he was able to do so. This was his first time to traffic in dangerous drugs.

8.  It was submitted that because of his parents’ early divorce, the defendant did not receive enough guidance when he was young and he had underestimated the seriousness of the offence and had taken the wrong step.

9.  Counsel for the defendant informed the court that he had already explained to the defendant the guidelines in the case of Hii Siew Cheng, but would still wish for leniency towards the defendant.

Sentencing authorities

10.  The Court of Appeal in Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006 indicated the tariff for sentence after trial for traffickers in Ketamine of between 50 to 300 grammes as 6 to 9 years’ imprisonment.

11.  The defendant is over the age of 21 at the time of sentencing and as such s.109A of the Criminal Procedure Ordinance, Cap.221 would not apply. In any event, trafficking in dangerous drugs is an excepted offence under schedule 3 of the same ordinance and s.109A would not apply. This is the law that requires the court to consider imprisonment only as a last resort.

12.  In the case of Secretary for Justice v Ko Fei Tat [2002] 4 HKC 59 where the applicant was sentenced to detention in a training centre, the Court of Appeal said the following:

“21. In regard to the Respondent's age and clear record, this court stated in R v Lau Tak-ming & Ors [1990] 2 HKLR 370 at 386E-G, with specific reference to trafficking in heroin, but having equal force when applied to trafficking in 'ice':

"It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight. By this we mean age and disability - though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.”

13.  Those considerations are equally applicable to those trafficking in Ketamine.

Sentence

14.  Although the defendant is of clear record, he was able to purchase large quantity of Ketamine and had the presence of mind to bring them home first, consumed some, and then brought the rest to sell to his ‘friend’ to make a profit. He is 22, and there is no element of extreme youth. I find that there are no exceptional circumstances to allow me to deviate from the guidelines sentence as laid down in Hii Siew Cheng.

15.  For the total of 111.31 grammes of Ketamine, I will adopt a starting point of 81 months’ imprisonment. I will however reduce this by 3 months to give credit for the defendant’s clear record, thus taking the starting point down to that of 78 months. Granting the defendant the full 1/3 discount in recognition of his plea of guilty, I will sentence the defendant to 52 months’ imprisonment.