HKSAR v. HUI CHI MING

DCCC 190/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 190 OF 2014

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REASONS FOR SENTENCE

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1.  The defendant, Hui Chi Ming (male) (aged 31 years), appeared before me this morning and pleaded guilty to a single charge of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The particulars of offence avers that the defendant on 23 December 2013 outside Room 2007, 20th Floor, King Yung House, King Lam Estate, Tseung Kwan O, New Territories in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 26.42 grammes of a solid containing 16.94 grammes of ketamine.

Facts

3.  This is a simple stop-and-search case.  According to the summary of facts which was agreed by the defendant, at around 2:47 pm on 23 December 2013 a team of officers of the Mong Kok District Special Duty Squad 1 were patrolling around the premises as named in the charge during an anti-dangerous-drugs operation.

4.  One of the police officers then saw the defendant leaving the premises and acting suspiciously.  The defendant was therefore intercepted for enquiry.

5.  After searching the defendant, it was found that inside the defendant’s shoulder bag there was one transparent resealable bag containing 13.58 grammes of solid and 22 transparent resealable plastic bags containing 12.84 grammes of solid.

6.  The government chemist later confirmed that those suspected dangerous drugs in turn contained 8.83 grammes and 8.11 grammes of ketamine.

7.  Furthermore, a transparent resealable plastic bag containing a pile of similar bags and an electronic scale were also found from this bag.

8.  As a result, the defendant was arrested.

9.  Under caution, and not surprisingly, the defendant stated that all the drugs were for his own consumption.

10.  At the time of his arrest, the defendant had with him cash of $30 and one mobile phone.

11.  The street value of the ketamine mixture was estimated to be around $3,170.40.

12.  In the subsequent video-recorded interview, the defendant, under caution, repeatedly told the police that the drugs were bought for his own consumption and those drugs were bought from a person called “Tai B” the day before his arrest for the sum of HK$1,600.  Defendant also stated that the drugs seized were for his own consumption and he usually consumed around $100 worth of ketamine each day.

13.  As to the pile of bags and the electronic scale, defendant stated that those were given to him by “Tai B” but he has no idea why “Tai B” gave him those things so he put them in his shoulder bag.

Criminal records and the background of the defendant

14.  In the past, the defendant had a total of 10 previous criminal convictions.  In particular, his last two criminal offence were two trafficking in dangerous drugs records.  In 2012, he was sentenced to a total of 16 months’ imprisonment.

15.  The defendant is aged 31.  He was born in China.  He had received an education up to the Form 3 level.  Previously he worked as a delivery man, earning HK$13,000 per month.  According to his lawyer, two years ago, he was injured during the work, and after which he ceased to be employed and became impoverished.

16.  Defendant’s father has passed away.  His mother is aged 50, a security guard by occupation.  He has three siblings (two brothers and one sister) but according to the antecedent statement, he did not have any contact with them.

Mitigation

17.  Mr Yiu, the solicitor for the defendant, informed the court that the reason why the defendant committed the present offence was due to the fact that after he was discharged from prison in May last year, he lived in the premises which was a public housing estate rented by his friend and his family.  He was unemployed and, because once again of economic reasons, he was driven to commit the present offence.

18.  Mr Yiu, however, stressed the fact that the defendant was very cooperative with the police and he had made frank admissions and he had pleaded guilty in this case.  Mr Yiu said that he was very remorseful and asked the court to be as lenient as possible.

19.  Mr Yiu said that out of the drugs seized in the present case there was a small quantity of drugs which is for the purpose of his own consumption.

20.  Citing the tariff guideline laid down by the Court of Appeal in the case of Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323, for a quantity of ketamine between 10 to 50 grammes the starting point for imprisonment should be 4 to 6 years’ imprisonment.  According to the calculation by Mr Yiu, the present quantity of drugs attracts a starting point of about 52 months’ imprisonment.

21.  Mr Yiu urged the court to take into account all that can be said for this defendant and pass a lenient sentence.

Sentencing considerations

22.  Trafficking in dangerous drugs is, of course, a very serious offence. The defendant should also know this, as his last two convictions, which landed him a total of 16 months’ imprisonment, were exactly because of similar offences.

23.  Unfortunately, the defendant did not learn from his lessons and almost about seven months after his release from prison, once again he turned to trafficking in dangerous drugs.

24.  The court can never accept people to commit crimes in order to solve his economic problems as an excuse.  The defendant repeatedly committed the present offence.  He should be warned that, as a repeated offender, the court can always consider increasing the sentence in the future in order to deter him from committing the present offence.

25.  Due to the fact that this is still only the second time the defendant committed the present offence, this court is not going to increase the sentence on this occasion.

26.  Mr Yiu is correct that, for the present quantity, a 52-month starting point is appropriate, according to the tariff guideline laid down by the Court of Appeal.

27.  I took into account what Mr Yiu had said that the defendant is a drug-abuser himself.

28.  According to the case of HKSAR v Chow Chun Sang, CACC 135/2011, self-consumption of all or part of the drugs is a mitigating factor.  The Court of Appeal approved a reduction to sentence and stated that usually it should be between 10% and 20% of the basic starting point.

29.  Exactly what discount should be made is the discretion of the court which the Court of Appeal would be unlikely to interfere.  It would depend on the nature and quantity of drugs, the proportion of drug intended for self-use, whether the offence was organised, pre-meditated and for financial gain and also the defendant’s background and record.

30.  In the defendant’s case, after considering all of the above factors, I would further reduce 7 months from the basic starting point of 52 months, which is already a discount of more than 10%.

31.  I will therefore use 45 months as the basic starting point.

32.  The defendant pleaded guilty and, therefore, he is entitled to the usual one-third discount.

33.  For this present offence, I shall sentence the defendant to 30 months’ imprisonment.