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DCCC 729/2019
[2020] HKDC 365
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 729 OF 2019
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| Present: |
Mr Benjamin Chain, counsel on fiat, for HKSAR
Mr Dick Lee instructed by Chan & Ho, assigned by the Director of Legal Aid, for the defendant |
| Offences: |
(1) Trafficking in a dangerous drug
(販運危險藥物) |
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(2) Trafficking in dangerous drugs
(販運危險藥物) |
REASONS FOR SENTENCE
1. The defendant pleads guilty to two charges of trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance[1].
2. The dangerous drug in charge 1 is 13.4 grammes of a solid containing 11.5 grammes of fluorodeschloroketamine. The dangerous drugs in charge 2 are 1.99 grammes of a solid containing 1.43 grammes of cocaine and 1.07 grammes of a crystalline solid containing 0.98 grammes of methamphetamine hydrochloride (“ice”).
3. The defendant pleads guilty only to trafficking in the fluorodeschloroketamine and the cocaine and claims that the ice was for her own consumption. The prosecution does not accept that all the ice was for the defendant’s own consumption but are willing to accept part of the ice may have been for the defendant’s own consumption.
4. Full particulars of the offences are set out in the facts admitted by the defendant. In summary at about 11 p.m. on 31 March 2019 the police were conducting an anti-drug operation at the Yue Wan Estate in Chai Wan when they intercepted the defendant outside the 7-Eleven convenience store.
5. Upon search the police found in the defendant’s handbag a re-sealable plastic bag containing the fluorodeschloroketamine. Under caution the defendant admitted she was helping a friend to deliver the drug (charge 1).
6. The defendant was then escorted to her residence where the police found inside a cabinet in the defendant’s bedroom a re-sealable plastic bag containing the cocaine; a re-sealable plastic bag containing the ice; a re-sealable plastic bag containing lignocaine, one electronic scale and a re-sealable plastic bag containing thirty smaller empty re-sealable plastic bags (charge 2).
7. Under caution the defendant admitted the items were for making dangerous drugs.
8. In a subsequent video recorded interview, the defendant admitted, inter alia, that she was asked to deliver items for a male known as “Sam” for a reward of $500.
9. The street value of fluorodeschloroketamine was estimated to be $8,602; the cocaine $1,337 and the ice $539.
10. At the request of the court photographs of the drugs seized have been submitted to court. The prosecution has also submitted an expert report of Dr Mak dated 7 August 2019 detailing the nature of fluorodeschloroketamine and lignocaine[2].
Mitigation
11. In passing sentence, I have carefully considered the written and oral submissions of Mr Lee, including that the defendant, aged 29 and single, suffers from severe eczema which has affected the defendant both physically and psychologically[3].
12. I have read the psychological and psychiatric reports submitted by Mr Lee which detail the history of the defendant’s psychological and psychiatric treatment since 1999.
13. I take into account the defendant has a clear record.
14. I have read the defendant’s mitigation letter in which she reflects on her wrong doing and realises that she cannot avoid her problems in life by breaking the law.
15. I have also read the letter written by the defendant’s father who has noticed his daughter is now more positive and cheerful. Both the mother and father have attended court today to show support for their daughter.
Guidelines
Charge 1 - Fluorodeschloroketamine
16. There are no guidelines for fluorodeschloroketamine. In HKSAR v So Wan Cheung the High Court, having also read a report prepared by Dr Mak, treated for sentence purpose fluorodeschloroketamine as equivalent to ketamine[4]. Mr Lee asks that the court also treats fluorodeschloroketamine as equivalent to ketamine.
17. In Secretary for Justice v Hii Siew Cheng[5]the Court of Appeal laid down guidelines for trafficking in ketamine. Where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years.
18. I am satisfied a starting point of 4 years’ imprisonment is appropriate for trafficking in 11.5 grammes of fluorodeschloroketamine.
19. Giving the defendant full credit for her plea of guilty reduces the sentence on charge 1 to 2 years and 8 months’ imprisonment.
Charge 2 – Ice & cocaine
Cocaine
20. The courts have equated for sentencing purposes cocaine with heroin[6]. In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[7]. The starting point after trial where the quantity of narcotic is up to 10 grammes is within the range of 2-5 years’ imprisonment.
21. On a purely arithmetical approach a starting point of just over 2 years and 5 months’ imprisonment would be appropriate for trafficking in 1.43 grammes of cocaine.
Ice
22. The defendant claims that the ice was all for her own consumption.
23. In his written mitigation Mr Lee explains that the defendant first came into contact with dangerous drugs in 2006; in 2011 became dependent on ice which she used to relieve the symptoms of her eczema and has particularised the defendant’s daily consumption of ice[8].
24. In support Mr Lee relies on the result of a urine test taken three days after the defendant’s arrest on her admission to Tai Lam Correctional Institute which was positive for amphetamine[9]. Mr Lee also relies on the medical reports submitted to court which detail the defendant’s drug abuse[10].
25. Taking into account the relatively small quantity of ice; the result of the urine sample collected on admission being positive for amphetamine and the history of drug abuse revealed in the medical reports, I am prepared to accept the ice may have been for the defendant’s own consumption.
26. Taking 2 years and 5 months’ imprisonment as the starting point for trafficking in 1.43 grammes of cocaine and bearing in mind the principle of totality, I am satisfied that an additional 4 months’ imprisonment is appropriate for possession of 0.98 gramme of ice[11].
27. Giving the defendant full credit for her plea of guilty reduces the sentence on charge 2 to 1 year and 10 months’ imprisonment.
28. In passing sentence, I have disregarded the lignocaine. Without knowing the exact or approximate amount of lignocaine contained in the powder the court cannot determine the significance of the lignocaine or the intended use of the lignocaine[12].
Totality
29. Taking into account the defendant was trafficking in both fluorodeschloroketamine and cocaine and was in possession of ice I am satisfied that a total sentence of 2 years and 11 months’ imprisonment properly reflects the defendant’s overall criminal culpability on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[13].
30. The defendant is convicted and sentenced as follows:
Charge 1 – 2 years and 8 months’ imprisonment; and
Charge 2 – 1 year and 10 months’ imprisonment with 3 months consecutive and 19 months concurrent to charge 1.
The total sentence to be served by the defendant is 2 years and 11 months’ imprisonment.
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(D. J. DUFTON) |
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District Judge |
[1] Cap 134.
[2] The lignocaine was the subject of charge 3 possession of a Part 1 poison contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap 138. This charge was left on the file not to be proceeded with without leave of the court or the Court of Appeal.
[3] See §§5, 10, 11 & 13-20 of the written mitigation.
[4] HCCC 364/2019.
[5] [2008] 3 HKC 325.
[6] See Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.
[7] [1990] 2 HKLR 370.
[8] See §§10-12 & 36 of the written mitigation.
[9] See §33 of the written mitigation.
[10] See §33 of the written mitigation.
[11] See HKSAR v To Chu Kong CACC 350/2013.
[12] See §§19-20 of Dr Mak’s report. In mitigation Mr lee said that the defendant used the lignocaine as a cutting agent for the ice and not for the cocaine.
[13] See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 and HKSAR v Pau King Kong [2013] 3 HKLRD 676.
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