HKSAR v. TSUI LONG MAN

DCCC 86/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 86 OF 2014

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Reasons for Sentence

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1. The defendant pleaded guilty to one charge of trafficking in dangerous drugs. Particulars of the charge are that he on 8 November 2013 at room 3416, 34th floor Tin Chak House of Tin Wan Estate in Aberdeen unlawfully trafficked in a dangerous drug, namely 33.68g of a powder containing 26.73g of ketamine.

Summary of facts

2. The defendant was seen entering the charge premises at around 7:49pm on the charge date by police officers during an anti-narcotics operation being undertaken in the vicinity of Tin Chak House.

3. Three police officers intercepted the defendant for inquiry and they searched the charge premises in execution of a search warrant.

4. When the police officers explained to the defendant that they will begin searching the defendant's bedroom, the defendant told them not to make a mess. The defendant then took out a key to unlock the door of his bedroom and took out a paper box and showed it to the police officers. Inside the box were 3  re-sealable transparent plastic bags containing some powder, which were later confirmed by the government chemist to be 33.68g of powder with 26.73g of ketamine.

5. In addition to the powder, 2 plastic bags containing a total of 200 re-sealable transparent plastic bags, one electronic scale, two glass tubes, one plastic rod, and one silver spoon with traces of ketamine were also found in the premises.

6. The street value of the seized drugs is estimated to be around $4,075. The defendant had with him one mobile phone, HK$1,960 and RMB200 at the time of his arrest.

7. In the subsequent video recorded interview, the defendant claimed that he lived in the premises with his mother and sister, that only he had the key to his bedroom, the bedroom was always locked when he was away and he would not let his mother and sister into the room.

8. The defendant also claimed that he bought the drugs from a man he met while playing video games in Kwun Tong on 6^th November. They began chatting and the defendant told the man about his money problem. The man suggested for the defendant to traffic in dangerous drugs. The two of them met at Kwun Tong ferry pier and the defendant bought 3 and a half packets of ketamine of around 80g for $2,500.

9. The defendant used the electronic scale to weigh the drugs and transferred them into smaller packets. He used his mobile phone to contact buyers for the drugs. He sold each 1.3g packet of ketamine for $100 and 2.4 to 2.5g packet for $200. He had already sold to 10 to 20 people before his arrest. He would usually sell the drugs at the staircase between 34^th and 35^th floor of Tin Chak House.

Previous convictions

10. The defendant has one previous conviction for unlawful sexual intercourse with a girl under 16 dated 14^th June 2012. He was sentenced to 18 months’ probation for that offence. There was subsequently a breach of that order and the probation order was extended to 24 months, with effect from 14^th June 2012. The defendant therefore committed the present offence whilst the probation order was still in effect. The probation order was set to expire on 13^th June 2014.

Mitigation

11. The defendant is 19 years old. He was born in Hong Kong and educated up to Form 4 level. He started working when he was 17 and was last working as a sushi apprentice in a restaurant, albeit only for a few days. A corresponding record of payment of wages was produced.

12. Mr. Lun, the social worker supervising the defendant, wrote to inform the court that the defendant suffered greatly when his father passed away in 1999, when the defendant was at a very young age.

13. At the time of the commission of the offence, the defendant was residing with his mother and younger sister in the premises where the dangerous drugs were found.

14. Mr. Ng for the defendant suggested that the proper starting point when applying the appropriate sentencing tariff for trafficking in 26.73g of ketamine is that of 4 years and 9 months’ imprisonment.

Sentencing Tariff

15. The sentencing tariff for trafficking in ketamine is found in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006. The sentence after trial for trafficking between 10 to 50 grammes of ketamine is between 4 to 6 years’ imprisonment. I agree entirely with Mr. Ng’s suggested calculation of the starting point in our present case.

Sentence

16. Having heard the defendant’s mitigation, I find that there is no reason to depart from the sentencing tariff. I note the defendant’s age is below 21, but trafficking in dangerous drugs is an excepted offence and imprisonment does not need to be the last resort, since s.109A of the Criminal Procedure Ordinance, Cap.221 does not apply.

17. For the narcotic content of 26.73g of ketamine, I adopt a starting point of 57 months’ imprisonment, discounting it by one third in recognition of the defendant’s guilty plea and sentence him to 38 months’ imprisonment.

18.The defendant’s application for the return of his seized mobile phone is refused because the defendant had specifically admitted in the summary of facts that the phone had been used by him to contact drug buyers.

19. The probation order imposed in case number E/648/12 be discharged pursuant to s.6 of the Probation of Offenders Ordinance, Cap.298. The probation period would end in about 2 months’ time, and I find it reasonable to discharge the order since the defendant will be serving his term of imprisonment in the present case for the remainder of the probation order in any event.