HKSAR v. CHUNG HO YIN

DCCC1304/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1304 OF 2009

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Reasons for sentence

1.  The defendant faces one charge of trafficking in dangerous drugs. He pleaded guilty, admitted to the amended summary of facts and was duly convicted.

Facts

2.  At about 1:33am on 24^th September 2009, PC6105 (“PW1”) saw a private vehicle which was parked outside no.168 Pik Wan Road, Lam Tin, Kowloon. The defendant was sitting in the driver’s seat of the vehicle. Another male was sitting in the front passenger sit. The engine of the vehicle was off at that time.

3.  PW1 approached the vehicle and requested the defendant to alight from it for a search. PW1 noticed that the defendant was holding a few transparent plastic bags in his hands at that time.

4.  When PW1 opened the door of the vehicle, he saw the defendant throw the said plastic bags out from the vehicle onto the floor.

5.  PW1 seized those bags and found that they contained a total of 44 plastic bags each containing substances which were later confirmed by the Government Chemist to be Ketamine.

6.  The defendant alighted the vehicle. PW1 and PC54273 (“PW2”) subdued the defendant immediately.

7.    PW1 arrested the defendant. Under caution, the defendant said, “Ah Sir, I bought those K Chai for my own consumption. It will be cheaper if I buy more. Give me a chance. I and my friend pooled a fund to buy them. Each of us pooled HK$1,000.

8. The male in the car was also arrested. Nothing of police interest was found in the vehicle.

9.  At 2:49pm on 25^th September 2009, DPC523 (“PW3”) conducted a video recorded interview with the defendant when he admitted under caution that the male was his friend, that the defendant was the owner of the vehicle and that he lived in Lei Muk Shue Estate.

10.  The total narcotic contents found to be in possession of the defendant was 19.44 grammes of Ketamine. Lastly, the defendant admitted through the amended summary of facts that at all material times, the defendant possessed exhibits P1 to P5 for the purpose of trafficking (see paragraph 11 of amended summary of facts).

Previous convictions:

11.  The defendant has a few previous convictions. The first one was in 2001 when he was 17 years old for possession of dangerous drugs when he was sentenced to the training centre. From my experience as a magistrate, this is a relatively heavy sentence for a first offender of possession charges.

12.  The 3^rd, 4^th and 5^th convictions were respectively for possession of dangerous drugs, possession of an identity card relating to another person, possession of dangerous drugs and smoking or injecting dangerous drugs, all on the same day in May 2004 when the defendant was sentenced to the drug addiction treatment centre for all 4 charges.

13.  The next conviction was in 2006 when the defendant was 22 for possession of dangerous drugs and he was sentenced to 3 years’ probation, the longest period possible for an order of such kind under s.3 of the Probation of Offenders Ordinance, Cap. 298. The defendant however did not treasure the chance given to him and was sentenced to the drug addiction treatment center again in June 2007 for breach of the probation order.

Mitigation:

14.  The defendant is 25, married with 2 daughters who are aged 5 and 3. Letters from his former employer indicate that the defendant had been working at a recycling company since 2008 (that would be after the defendant’s release from the DATC) as a supervisor earning $9,000 per month. I find it slightly suspicious how someone who was just released from the DATC can find such a well paid job in such a short time in the then financial climate, and as a supervisor as well, which would normally indicate some seniority and experience. Nevertheless, that is what is stated in the employment letters. The managers also stated that they will re-employ the defendant upon his release from prison.

15.  The defendant’s wife informed the court via her letter that since the birth of their 2^nd daughter she had been suffering from depression. She blames herself for putting too much pressure on the defendant causing him to commit the present offence. She has expressed her determination to support her husband by looking after their daughters and to eventually assist the defendant in his rehabilitation.

16.  The defendant also wrote a letter in his own mitigation, telling the court that he had been thinking about his past and because of his stubborn character he committed the present crime. He is deeply remorseful and consider himself more mature now. His mother is suffering from ill health and he has to look after his wife and his daughters. He realized the importance of looking after the family and his daughters. He wishes to plan for a better future. He had sought assistance from a priest of the church to help him rehabilitate. He will treasure the chance to go back to his old job upon his release. He just wishes through the letter to let the court knows about his latest thinking and to tell the court that he is willing to face whatever punishment the court deems fit to impose.

17.  Counsel for the defendant submitted 2 well known cases in relation to sentencing on trafficking: Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006 and the case of HKSAR v Wong Suet Hau & another, CACC 366 and 487 of 2000.

18.  Counsel relies on holdings (4) and (5) of Hii Siew Cheng to say that there are exceptional circumstances to depart from the guidelines. Counsel seeks to take the face value of the 2^nd sentence in the holding where it is stated that “The guidelines were intended to deter traffickers who frequented such premises where young people were likely to be.” The Court of Appeal before that, at paragraph 97 of the judgment said that, “we do not envisage the trafficker in Ketamine or ecstasy who visits a discotheque or similar premises being given a non-custodial sentence under any circumstances save where these are exceptional in the extreme”. The Court then proceeded to expand on that to say that the guidelines are intended to deter traffickers who frequent such premises. The guidelines are not limited to those scenario.

19.  The 2^nd case of HKSAR v Wong Suet Hau was also referred to in Hii Siew Cheng. After recognizing that in most trafficking cases, the defendant would raise self-consumption as a mitigation factor, the Court of Appeal in Wong Suet Hau set out factors that should be considered when the matter does arise. I do not think that I need to consider this ground of mitigation at all, for the reason that I find that there has not been established any basis that any of the drugs that the defendant was found in possession of were for self-consumption.

20.  When the defendant decided to plead guilty to the present trafficking charge, he had impliedly admitted that what he said under caution at scene to the police officer was untrue, that is to say his words that the drugs were for his own consumption.

21.  Furthermore, and more importantly, the defendant had explicitly confirmed that at all material times, he possessed all the dangerous drugs for the purpose of trafficking when he admitted to paragraph 11 of the amended summary of facts. There is therefore no factual basis to find that any of the dangerous drugs the defendant was in possession of that night was for his own consumption. On the contrary, there is the defendant’s own admission that the drugs were all for the purpose of trafficking to support the charge finding. The defendant may well be a drug addict, but the relevance of self-consumption only arises when the suggestion is that some of the drugs found to be in possession and being subject matter of a trafficking charge were for the defendant’s own consumption. That is not the case here and Wong Suet Hau does not apply.

Sentencing tariff

22.  Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006 applies, and the indicated sentencing tariff for sentence after trial for traffickers in ketamine of 10 to 50 grammes is 4 to 6 years’ imprisonment.

23.  While not being unsympathetic for the suffering of the defendant’s wife and daughters, for reasons set out above when dealing with the cases cited by counsel for the defendant, and having considered the other grounds of mitigation put forward by counsel for the defendant, I find that there is no reason for me to depart from the guidelines.  The total narcotic contents is 19.44 grammes of Ketamine, I find that an appropriate starting point is that of 54 months’ imprisonment. I will grant the defendant the full one third discount upon his guilty plea and sentence him to 36 months’ imprisonment.