HKSAR v. LEE CHUN MAN

DCCC 751/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 751 OF 2014

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Reasons for Sentence

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1.  The defendant has pleaded guilty to an indictment which alleges that he was in possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance.

2.  The particulars of the offence alleged the defendant possessed 55.58 grammes of ketamine and 2.28 grammes of methamphetamine hydrochloride, commonly known as “Ice”.

3.  The defendant was apprehended as the result of a police operation on 3 June 2014 that took place at Goldway Parking in Tsuen Wan.  The defendant was a driver of a medium goods vehicle.  The police opened the door of the vehicle, saw the defendant pushing a can away from himself.  He was seen to have white powder on his nostrils. 

4.  A search then commenced, and in various areas the drugs were found.  There was a tin that contained the “Ice”, a paper box containing some ketamine, a paper packet containing further ketamine with a plastic spoon.  The can that the defendant had pushed away was also found. That contained further ketamine with a broken plastic spoon and an electronic scale and a larger portion of ketamine contained in six plastic bags. 

5.  The defendant was found in possession of cash $6,525 odd.  And the market price of the drugs was $10,646.  All that is agreed.

6.  A criminal record of the defendant was produced.  He has one conviction for simple possession in 2002 for which he was fined.

7.  The defendant’s antecedent statement was also produced.  He is educated to Secondary Form 3 level.  He works in the transportation industry.  He lives with his parents and two elder brothers.  He says although he was convicted some 12 years ago of possession of dangerous drugs, he has only been an addict for the last three years. 

8.  Further mitigation was advanced.  The defendant earns $16,000 odd a month.  From that income he supports himself and also his parents.  He also has a brother who is disabled and jobless.  He is a breadwinner of the family.

9.  In mitigation, it is said that these drugs were for his own consumption.  He had finished work and he was consuming the drugs before moving on somewhere else. 

10.  A mitigation letter has been produced in which the defendant shows his remorse and asks for leniency.

11.  The most important factor in this case of course is the defendant is convicted of possession of the drugs.

12.  Firstly, I have to consider that the defendant has what is described as a cocktail of drugs.  In this case it is a cocktail with only two ingredients, the “Ice” in a relatively small quantity and the other dangerous drug, ketamine, in a much larger quantity. 

13.  Where the courts face the cocktail of a drug, different approaches have been adopted towards sentence:  one has been described as the individual approach which when one looks at each component of the cocktail, then sentences by adding up the different sentencing, and the combined approach whereby the court looks at the overall quantity of drugs rather than individual parcels and takes a global view. 

14.  The methodology of combined approach is said to be first to calculate the applicable sentence for the more and most serious drug, then adjust the sentence upwards to take into account significant quantities of other less serious drugs.  And in terms of seriousness, the court does not refer to quantities but seriousness in terms of the potency of the drug.  Where “Ice” and ketamine are found in a cocktail, the more serious drug is taken to be “Ice”, even if in terms of quantity it may be less than the ketamine.

15.  As the court is dealing here with a case of possession, one has to assess, given the quantity of drug, whether the latent risk factor is an appropriate factor to be considered in sentencing the defendant. 

16.  The defendant is clearly, on the evidence, a bona fide user of the drug.  He is convicted of possession of the drug and was actually consuming it at the time of his arrest.

17.  A three-step approach will be adopted.  That will involve a starting point, the appropriate starting point, for possession of the drug; enhancement to take account of the latent risk factor of redistribution of the drugs; and then adjustment of the sentence to take account of mitigation.

18.  And the first step in this case is to consider what the appropriate starting point is for the drugs themselves.  Possession of the drug, and before any other factors are taken into consideration, of these drugs, sentence would range between 12 to 18 months’ imprisonment.  One here is dealing with a cocktail or a combined drug.  I consider that the appropriate first step to it would be a sentence of 18 months’ imprisonment. 

19.  The second step will involve the latent risk factor.  The defendant is an addict, presumably of both drugs.  He has no record for the offence of drug trafficking.  He was in employment.  He kept the drugs at his place of employment, that is, his vehicle.  There is evidence that he is a consumer of the drugs from his previous conviction of drugs and also his admission.  In mitigation, he has been an addict for three years.

20.  Also to be considered there is a substantial quantity of ketamine involved in this case.  And together with the ketamine, the defendant had stored a means of consumption and also an electronic scale.  I know little about the mechanics of drug consumption.  But the possession of a scale would be used when one wanted exact doses and would of course be useful if one was going to distribute the drug and sell it.   So I cannot say the latent risk in possession of this quantity, together with this equipment, is negligible or small.  Nevertheless, there is no evidence that the defendant has in fact distributed these drugs. 

21.  I consider that in this case due to these particular facts, the latent risk factor should involve an additional 18 months of sentence.   That will be the starting point of sentence.

22.  The defendant is entitled to one-third deduction and he is sentenced to 2 years’ imprisonment.  The starting point is 36 months or 3 years’ imprisonment, reduction of one-third, this is a sentence of 2 years’ imprisonment.  

(T Casewell) District Judge