HKSAR v. HO YUK LUN

DCCC1286/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1286 OF 2009

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Reasons for sentence

1.  The defendant faces one charge of Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. It is alleged that the defendant on 8^th October 2009, outside the public toilet at the junction of Ngau Pei Sha Street and Kwong Sin Street, Shatin, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 53.42 grammes of a powder containing 45.03 grammes of Ketamine.

2.  The defendant pleaded guilty to the charge, admitted to the summary of facts and was duly convicted.

Summary of facts

3.  In the afternoon of 8^th October 2009, at around 4:40pm, police officers in an anti-dangerous drugs operation at the junction of Ngau Pei Sha Street and Kwong Sin Street in Shatin found the defendant acting furtively and looking around. They intercepted the defendant outside a public toilet, searched the defendant and found one paper box inside the defendant’s shoulder bag. Four plastic bags of suspected Ketamine (“P1”) were contained inside the paper box. The defendant was arrested and cautioned. Under caution, the defendant claimed that P1 was Ketamine and he bought the Ketamine in bulk for consumption after receiving his salary. At a subsequent video recorded interview, the defendant claimed, inter alia, that at around 3:30pm on 8^th October 2009, he ran into a casual friend named “Monkey” at Shatin MTR Station. “Monkey” offered to sell him Ketamine. The defendant later met up with “Monkey” at around 4pm on Ngau Pei Sha Street and bought P1 from “Monkey” at a price of $4,000. After purchasing P1, he intended to go back to his residence at Siu Lek Yuen but was intercepted by the police on his way home. The defendant said he had no means to contact the said “Monkey”. He also claimed that he has been a drug addict for about 2-3 years and he just received his salary and therefore purchased the Ketamine in bulk for self-consumption. Government chemist certified the substance contained 45.03 grammes of Ketamine.

Previous

4.  The defendant has 12 previous convictions with 2 for possession of dangerous drugs in October 2007 when he was sentenced to a total of 10 months’ imprisonment.

Mitigation

5.  The defendant is 27, living with his girlfriend who gave birth to their baby boy on 29^th September 2009, just 9 days before the defendant’s arrest for the present offence.

6.  The defendant came from a broken family. His parents deserted him when he was born and the defendant was left to be raised by his grandmother. The parents never visited the defendant or offered financial support. The defendant’s grandmother is now 68 years old and is working as a garbage collector.

7.  The defendant is educated up to form 4 level. He then took on different jobs including lorry attendant and cleaner. Before the arrest, the defendant was working as a supervisor at a cleaning company and was earning $7,500 per month.

8.  The defendant is a self-confessed Ketamine addict and has been so since 2006. Counsel for the defendant informed the court that because the drug syndicate was aware of the defendant’s drug addiction, they offered him a special deal: if the defendant agrees to deliver drugs for them, they will supply the defendant with Ketamine for free for his consumption. The defendant agreed to do so and had made a few deliveries prior to being arrested for the present offence. Counsel for the defendant Ms. Chu confirmed that the drugs found on the defendant when he was arrested for the present offence were all meant for delivery and not for his own consumption.

9.  It was put forward in mitigation that the defendant was in a bad financial situation at the time of the commission of the offence. Since the defendant’s remand, his girlfriend had lost his financial support. She suffered from depression after giving birth and had only her family to support her. She is still receiving treatment at the Prince of Wales Hospital. Fortunately, the employer of the defendant having found out about the plight of the defendant, offered a clerical job to his girlfriend and she had begun working for the company since February 2010, earning a salary of $5,400 per month, while her mother looks after the baby.

Sentencing authorities

10.  In the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006, the Court of Appeal indicated the tariff for sentence after trial for traffickers in Ketamine of 10 to 50 grammes is 4 to 6 years’ imprisonment.

Sentence

11.  Although I do sympathize with the difficulties that the defendant and his girlfriend have been facing, there is nothing in mitigation to allow me to deviate from the sentencing tariff. In fact, what I was told in mitigation about the defendant having made previous deliveries and that he was involved with a syndicate who agreed to supply him with free drugs in return for deliveries made for them could very well amount to aggravating factors.

12.  Be that as it may, I find that a starting point of 69 months’ imprisonment which is based on the quantity of Ketamine involved in the charge would be enough punishment for the defendant. Since the defendant pleaded guilty, I will grant him the full 1/3 discount and reduce the sentence to that of 46 months’ imprisonment.