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DCCC 468/2015
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 468 OF 2015
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| Before : |
H.H. Judge G. Lam |
| Present : |
Mr. Edward Laskey, counsel on fiat, for HKSAR. |
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Mr. Ronny LEUNG instructed by M/s Leung,Tam & Wong, 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 5:00 pm on 7 April 2015, the defendant and 2 other males gathered at the staircase near Room 609, Tin Chu House, Shun Tin Estate. Police officers stopped them for enquiry.
3. Upon search, a purple plastic bag ("E1") was found at the defendant's waist. E1 contained 3 resealable plastic bags, which contained a total of 29.32 grammes of a powder containing 25.33 grammes of ketamine. E1 also contained another resealable plastic bag, which contained 51 smaller empty resealable plastic bags.
4. Under caution, the defendant claimed that the ketamine was for his own consumption and asked for a chance.
5. In his cautioned interview, the defendant admitted that he was consuming ketamine when he was stopped by the police officers. The other 2 males are his friends. He bought the ketamine 2 days before his arrest at the price of $2,500. He obtained the 51 smaller plastic bags from the ketamine seller.
Mitigation & Sentence
6. The defendant is 34 and has 10 conviction records, which include 6 "simple possession" offences and 1 "smoking/injecting" offence. His last conviction was a "simple possession" offence (dated September 2013); he was given a DATC Order.
7. In mitigation, defence counsel Mr. LEUNG submitted that this is the defendant's 1st "trafficking" offence. He is remorseful and has learned a bitter lesson. Prior to his arrest, the defendant worked in a cleaning company. His employer praises his work performance and is willing to take him back when he has finished serving his sentence. Letters written by the defendant, the defendant's mother and the defendant's employer were placed before me; their contents are duly noted.
8. Mr. LEUNG has also asked for a proper discount for self-consumption. He submitted that the defendant had intended to reserve 5 grammes of the ketamine for himself. Mr. Laskey for the prosecution takes a neutral stance on this issue.
9. 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 even for fresh offenders.
10. 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 25.33 grammes of ketamine. For that quantity, the appropriate starting point is 4.5 years' imprisonment.
11. Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles[1]. The defendant has previous convictions of "simple possession". I accept that he might well be a drug addict. I am prepared to reduce the sentence to 48 months to reflect the discount for self-consumption[2].
12. Finally, a one-third discount is given for the guilty plea, reducing the sentence further to 32 months. I hereby sentence the defendant to 32 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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