HKSAR v. TAI CHEUK KIN

DCCC 620/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 620 OF 2014

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to s 4(1)(a) & (3) of the Dangerous Drugs Ordinance, Cap 134, and to one charge of possession of a dangerous drug, contrary to s 8(1)(a) & (2) of the said Ordinance.

The facts

2.  The defendant was stopped for a search by the police around 9:39 pm on 24 March 2014 outside ground floor of Tin Ming House, Tin Ping Estate in Sheung Shui.  He was holding the following items in his left hand:-

(a) A lemon tea box containing:-

(i) 3 plastic bags containing a total of 84.33 grammes of a powder containing 60.24 grammes of ketamine; and

(ii) 4 plastic bags containing a total of 93.94 grammes of a powder containing 68.11 grammes of ketamine;

(b) a plastic bag containing 0.46 gramme of a crystalline solid containing 0.44 gramme of methamphetamine hydrochloride, commonly known as ICE.

3.  Items (a) (i) and (ii) contained a total of 178.27 grammes of a powder containing 128.35 grammes of ketamine.  These are the subject-matter of the 1^st Charge.  Item (b) forms the subject-matter of the 2^nd Charge.

4.  Under caution upon his arrest, the defendant admitted that he was delivering the ketamine to someone, whereas the ICE was for his own consumption.

5.  The estimated street value of the ketamine was HK$21,036, and of the ICE, $241.

Defendant’s background

6.  The defendant is now 25 years old, single, and was living with his mother and a younger brother in a public housing estate at the time of the offence.  He was educated to secondary one, and was a stage designer with a monthly income of around HK$15,000 at the time of his arrest.

Defendant’s criminal record

7.  The defendant has 9 previous convictions, 3 of which are of the same nature as the 1^st Charge, 2 of which are of the same nature as the 2^nd Charge.  His last 3 convictions are all for trafficking in dangerous drugs, for which he was sentenced to a total term of 28 months imprisonment on 2 March 2012.

Mitigation

8.  The defendant’s counsel Mr Lee tells me that the defendant was in the habit of taking ICE, and that the defendant started taking ICE under the influence of bad peers in around 2009 when he just turned 20, and became addicted to it even since.

9.  Because of financial difficulties and out of naivette, the defendant committed the present offences.  He agreed to deliver the ketamine for others for a reward of HK$1,000 and for receiving the ICE the subject-matter of the 2^nd Charge for free.

10.  His counsel fairly and correctly points out that the strongest mitigation is the defendant’s plea of guilty, which shows his remorse and saves the court’s time and public expenses.

11.  A letter written by the defendant was produced in the course of mitigation.  The letter sets out the financial strain the defendant was under as a result of his mother’s ill health and of his younger brother being still in school.  Under the influence of bad peers, he committed the present offences in the hope of alleviating his financial difficulties.

12.  For my reference, Mr Lee submitted the Reasons for Sentence given by HH Judge WK Kwok in DCCC 272/2014.  In that case, the learned judge adopted a starting point of 6 years 6 months imprisonment for trafficking in 121.83 grammes of ketamine, and a starting point of 12 months for possession of 0.13 gramme of ICE.

Reasons for sentence

13.  The 1^st Charge is trafficking in 128.35 grammes of ketamine.

14.  According to the sentencing guidelines laid down by the Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the tariff for trafficking in 50-300 grammes of ketamine is 6-9 years imprisonment.

15.  I can find no mitigating factors in the defendant’s or his family’s background.  While the court is sympathetic to the defendant’s mother for her poor state of health, her health condition does not mitigate the defendant’s culpability.

16.  That the defendant may have committed these offences out of financial need or out of greed for fast money is, again, no mitigation.

17.  The only real mitigation in this case is the defendant’s pleas of guilty which, of course, reflect his remorse.

18.  The present case, however, is not the defendant’s first conviction for the offences that he admits.  His criminal record discloses 3 previous convictions for trafficking in and 2 previous convictions for possession of dangerous drugs.

19.  Given the quantity of ketamine involved,  and the defendant’s rather poor record, I consider a starting point of 6 years and 6 months imprisonment for the 1^st Charge an appropriate one.

20.  The defendant will get the usual 1/3 discount for his plea of guilty, which is the only mitigation in this case.  The sentence, after discount, is one of 52 months imprisonment.

21.  I shall now deal with the 2^nd Charge of possession of 0.44 gramme of ICE.

22.  In HKSAR v Mok Cho Tik CACC 165/2000, the Court of Appeal takes the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months.

23.  Given the small quantity of ICE involved, I would adopt a starting point of 12 months imprisonment for the 2^nd Charge.  For his plea of guilty, the defendant will also get a 1/3 discount of this starting point.  The sentence after plea is one of 8 months imprisonment for the 2^nd Charge.

24.  As both offences were committed at the same time in a single transaction, it is only right that concurrent sentences be imposed for them.

25.  I order that the sentence for the 1^st Charge is to run concurrently with the sentence for the 2^nd Charge.  This would result in a total term of 52 months imprisonment in respect of both charges.