HKSAR v. CHUNG MAN HIN

DCCC 693/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 693 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to three charges:-

(1) Charge 1, trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, namely, 144.8 grammes of a powder containing 58.12 grammes of ketamine and 273 grammes of a solid containing 51.1 grammes of ketamine;

(2) Charge 2, possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134, namely, 0.94 gramme of a crystalline solid containing 0.28 gramme of “Ice”;

(3) Charge 3, possession of apparatus fit and intended for inhalation of a dangerous drug, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134, namely, four plastic straws and one glass tube fit and intended for the inhalation of a dangerous drug, namely, “Ice”.

Summary of facts

2.  At around 2.44 am on 4 May 2017, Chan Tsz Him led the police officers to Room 4, Flat A, 1st Floor, Yen Wai Garden, Heung Shing Street, Tsuen Wan.  At the material time, no one was inside Room 4. 

3.  At around 2.50 am, defendant returned to Room 4.  Upon search of the defendant, a transparent resealable plastic bag was found in his front right trousers pocket which contained:-

(a) four plastic straws and one glass tab;

(b) one plastic bag containing 0.94 gramme of a crystalline solid containing 0.28 gramme of “Ice”;

(c) HK$11,401 cash, mobile phone and keys were also found on him.

4.  On the black table inside Room 4, in the presence of the defendant, the following items were also found:-

(a) Inside various transparent resealable plastic bags and one plastic bag, a total of 144.8 grammes of a powder containing 58.12 grammes of ketamine;

(b) while in another plastic bag containing 273 grammes of a solid containing 51.1 grammes of ketamine;

(c) 30 numbers of empty transparent resealable plastic bags; and

(d) two electronic scales were also found.

5.  Under caution at the scene, the defendant stated that at about three to four months ago, he bought the ketamine and the “Ice” from Ah Man at the price of $2,000 and $200 respectively.  He intended to mix the ketamine and sold them to his friend at $600 per 3 grammes but he had not sold any of it yet.  The defendant was then arrested. 

6.  Under caution, he stated that he sold ketamine to earn more money.  The “Ice” was for his own consumption.

7.  The market value of the ketamine and “Ice” are estimated to be around $104,868 and $293 respectively.

Previous conviction

8.  The defendant has a clear record. 

Mitigation

9.  The defendant is 20 years of age.  His parents separated when he was 8 years old.  He lives with his mother and a brother. The defendant was unemployed at the time of his arrest.  Both of his parents are in court today.  They also submit two mitigating letters to ask for leniency on his behalf. 

10.  The defendant committed the present offence because he felt that his mother was under financial stress at the material time.  She borrowed money from friends and relatives to renovate their flat which was a public housing unit.  Both parents wish this court to call for reports before passing sentence on him. 

Sentence

11.  The defendant has committed very serious offences.  I do not need to consider any report before I pass the sentence on him for the following reasons:-

(a) Section 109A of the Criminal Procedure Ordinance, Cap 221 provides:-

“No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.”

But this provision does not apply to trafficking in dangerous drugs which is an excepted offence.

(b) In Secretary for Justice v Chau Tsz Tim [2015] 1 HKLRD 853 and also in a recent authority, HKSAR v Li Leung Fai CACC 74/2017, the courts reaffirmed the sentencing principle that it was only in very rare cases where there are exceptional circumstances that a training centre order would be appropriate for a trafficking offence involving a substantial quantity of dangerous drugs.

(c) In my opinion, family financial difficulty does not amount to exceptional circumstances. As said in SJ v Ko Fei Tat [2002] 4 HKC 59 that young age carries little weight in mitigation because there is a need for deterrence when dealing with offences like trafficking in a dangerous drug.

(d) Notwithstanding the defendant’s young age, I am satisfied I can proceed to sentence today without calling for any reports.

12.  When passing sentencing, I bear in mind all the mitigating factors advanced by the defence.  As to Charge 1, I also have regard to the relevant sentencing guidelines set down by the Court of Appeal in Hii Siew Cheng CAAR 7/2006 where the quantity of narcotic is between 50 to 300 grammes, sentence falls within the range of 6 to 9 years.

13.  In the present case, the quantity of drugs was 109.22 grammes of ketamine.  The appropriate starting point will be 6 years 6 months.  Taking into account the defendant’s young age, I adopt a reduced starting point of 6 years 3 months.  Reduce one-third because of his guilty plea, it comes down to 4 years 2 months. 

14.  As to Charge 2, possession of 0.28 gramme of “Ice”, the usual sentence is one between 12 to 18 months.  In view of the quantity involved, I adopt a starting point of 9 months, reduced to 6 months because of his guilty plea.  

15.  As to Charge 3, possession of apparatus intended for inhaling dangerous drugs, I adopt a starting point of 6 months reduce to 4 months. 

16.  To this end, I order all three sentences to be run concurrently.  The total sentence is 4 years 2 months.