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DCCC 972/2015
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 972 OF 2015
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| Before: |
H.H. Judge G. Lam |
| Present: |
Mr. Alex NG, counsel on fiat, for HKSAR. |
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Mr. Freddy WOON, instructed by M/s Eli K.K.
Tsui & Co., assigned by the Director of Legal Aid,
for the defendant. |
| Offence: |
Trafficking in a dangerous drug（販運危險藥物） |
REASONS FOR SENTENCE
The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is ketamine.
Summary of Facts
2. About 9:50 p.m. on 16 July 2015, PC 5032 (PW1) stopped a private car TM 1215 ("the Car") at a road block set up at the junction between Bute Street and Canton Road in Mongkok. The defendant was the only person on board of the Car.
3. The Car was searched in the defendant's presence. On the floor near the driver seat, 2 transparent resealable plastics bags containing ketamine were found. Under caution, the defendant claimed that the 2 packets of ketamine were for self-consumption.
4. PW1 continued to search the Car. A transparent resealable plastic bag containing ketamine was found inside a small box next to the steering wheel. Under caution, the defendant claimed that this packet of ketamine and the other 2 packets were for self-consumption. The 3 resealable plastic bags found in the Car contained a total of 40.00 grammes of a powder containing 25.70 grammes of ketamine.
5. The defendant now admits that he possessed all the ketamine found in the Car for the purpose of unlawful trafficking.
Mitigation & Sentence
6. The defendant is 32 and has 4 conviction records, which include 1 "trafficking" offence and 1 "simple possession" offence. Defence counsel Mr. WOON informed me that the defendant is married with a stepchild. His wife and stepchild both live in the mainland, and they rely on the defendant's support. The defendant works as an air-conditioning technician earning $800 per day. He resides with his parents and 2 siblings.
7. In mitigation, Mr. WOON submitted that the defendant has been consuming ketamine for about 2 years since 2014. When he was stopped at the road block, he was driving home after purchasing the drug. Mr. WOON further submitted that the defendant had intended to consume 1/3 of the ketamine found on him. He purchased the remaining 2/3 on behalf of a friend. Mr. NG for the prosecution did not object to the self-consumption claim but was not in a position to agree or disagree with the quantity. Letters from the defendant's employer were placed before me; their contents are duly noted.
8. Drug abuse has always been a problem in our society. A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment, so that there is a deterrent effect.
9. The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see SJ v HII Siew Cheng [2009] 1 HKLRD 1). For 10 to 50 grammes, the sentence ranges from 4 to 6 years' imprisonment. The defendant trafficked in 25.70 grammes, the appropriate starting point is 57 months' imprisonment.
10. Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles[1]. There is sufficient evidence to suggest that the defendant might be a drug user at the time of arrest. According to the Summary of Facts, the ketamine was packaged in 3 bags; whereas 2 were found on the floor near the driver seat and 1 in the small box near the steering wheel. I am prepared to reduce the sentence to 51 months[2] to reflect the discount for self-consumption.
11. Finally, a one-third discount is given for the guilty plea, reducing the sentence to 34 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 34 months' imprisonment.
[1] See HKSAR v CHOW Chun Sang [2012] 2 HKLRD 1121; HKSAR v WONG Suet Hau & another [2002] 1 HKLRD 69 and HKSAR v CHEUK Kin Man CACC 294/2009 (English translation).
[2] In CHOW Chun Sang, Yeung VP held "We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant." (paragraph 19, p.1126)
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