HKSAR v. FONG POK CHUN

DCCC 117/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 117 OF 2012

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BETWEEN

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Reasons for Sentence

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Introduction

1.  The defendant is convicted on his own plea of one charge of trafficking in a dangerous drug, namely 126.01 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

Facts

2.  A team of Customs Officers had been keeping the defendant under surveillance since the afternoon of 1 November 2011. At 00:18 am on 2 November 2011, the defendant came out of his residence situated at Flat 2, Ground Floor, Block 7, Pearl Island Villas, Tuen Mun and made for his car parked nearby. He was intercepted by the Customs Officers. Upon search:

(i) a plastic bag containing 250.39 grammes of a powder containing 121.84 grammes of ketamine was found inside the defendant’s left rear trousers pocket; and

(ii) two other plastic bags, one containing 3.59 grammes of a powder containing 2.90 grammes of ketamine, and the other containing 2.99 grammes of a powder containing 1.27 grammes of ketamine, were found inside the defendant’s right front trousers pocket.

Under caution, the defendant said inter alia that the aforesaid drugs were “K Chai” that he had got from a friend.

The defendant’s previous conviction record and antecedents

3.  The defendant has three previous convictions, all unrelated to drug offences. His last conviction was in 1995. I indicated to Mr Lai that I would not take into account the defendant’s previous convictions as an aggravating factor.

4.  The defendant was born in Hong Kong in June 1967. He is now 44. He has received education up to upper secondary school level. He claimed that he was a merchant with a monthly income of HK$30,000.

Mitigation

5.  In mitigation, Mr Lai referred me to the sentencing tariff laid down in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 and suggested this court to adopt a starting point of 6½ years’ imprisonment. Mr Lai also advised this court that the defendant would not pursue the argument of self-consumption.

Sentence

6.  In Hii Siew Cheng, the Court of Appeal laid down the tariffs for trafficking in ketamine. For trafficking in a quantity of 50 to 300 grammes of ketamine, the sentence should be an imprisonment of between 6 to 9 years.

7.  In HKSAR v Nam Man-ngai DCCC 614/2009, the former District Judge M Yuen remarked at paragraph 16 of the judgment that trafficking of 120 grammes of ketamine would likely have attracted a term of 6 years and 10 months’ imprisonment.

8.  In HKSAR v Chan Siu-hang DCCC 1267/2008, Deputy District Judge Eddie Yip (as he then was) adopted a starting point of 7 years’ imprisonment for trafficking in 100.73 grammes of ketamine.

9.  In HKSAR v Lam Pak Ning DCCC 1328/2010, a starting point of 6 years and 9 months’ imprisonment was adopted for trafficking in 122.06 grammes of ketamine.

10.  Having considered the quantity of ketamine involved in this case and the aforesaid judgments, I am minded to adopt a starting point of 6 years and 9 months’ imprisonment.

11.  In light of the defendant’s guilty plea, I give him one-third discount thus reducing the sentence to 4½ years’ imprisonment. There being no further mitigating features justifying any further reduction in sentence, the defendant is sentenced to 4½ years’ imprisonment.