HKSAR v. HUI CHUNG KEUNG

DCCC 1143/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1143 OF 2010

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of trafficking in 23.40 grammes of a powder containing 18.09 grammes of ketamine and 2.46 grammes of a solid containing 2.27 grammes of cocaine (charge 1) and one charge of possession of two inhaling devices fit and intended for the inhalation of ice, contrary to sections 4 and 36 of the Dangerous Drugs Ordinance, Chapter 134.

2.  In summary in the early evening of the 4th August this year the police intercepted the defendant when he was leaving his home.  The defendant was taken back into his home where the police executed a search warrant.  The police found in a box on a table in the living room fourteen plastic bags containing the ketamine and eleven plastic bags containing the cocaine together with thirty three unused plastic bags; an electronic scale; $20,000 cash and the two inhaling devices. The Government Chemist confirmed traces of ice were found in the inhaling devices.  Under caution the defendant claimed the ketamine and cocaine was for his consumption; the cash was from previous sales of dangerous drugs and that the inhaling devices were his.

3.  In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Boyton, together with the letters submitted by the defendant, his mother, employer and friends.

4.  The courts have equated for sentencing purposes cocaine with heroin (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).  In R v LAU Tak-ming[1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years imprisonment. 

5.  In the Secretary for Justice v HII Siew-cheng [2008] 3 HKC 325 the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years imprisonment. 

6.  Following these guidelines the proper starting points after trial would be 2 years and 6 months imprisonment for 2.27 grammes of cocaine and 4 years and 3 months imprisonment for 18.09 grammes of ketamine. 

7.  Mr Boyton accepts theproper approach to sentence is to adopt the ‘individual’ approach (see for example HKSAR v CHENG Yat-ming CACC 455/2006 as applied in HKSAR v CHAN Ho-wai                 CACC 129/2008 and HKSAR v KO Ka-hing [2009] 4 HKLRD 856).  The court must however give proper regard to totality and in so doing I must not overlook that had all the drugs been cocaine the starting point would not exceed 6 years imprisonment.  I am satisfied an overall starting point of 5 years imprisonment is appropriate. 

Own use

8.  I am told that the defendant started abusing ketamine when he was 18. In TWCC 3463/2007 the defendant was convicted of inhaling ketamine and placed on probation in March 2008.  The defendant says he has also experimented with ice, heroin and cocaine although I note in the probation report the defendant said he also took ice and ecstacy. The defendant continued to take ketamine and in 2009 attended and completed a drug treatment programme run by the Au Tau Youth Centre.   Regrettably the defendant relapsed into taking ketamine again this year and resorted to trafficking in drugs to support his addiction.

9.  The defendant says that half the ketamine and a small amount of cocaine were for his own consumption.  The fact that the defendant has a history of ketamine abuse and that a card and straw with traces of ketamine were found in his home which are consistent with ketamine abuse, I am prepared to accept some of the ketamine was for his own consumption.  There is however no evidence to support the defendant was also consuming cocaine.  The evidence shows he was consuming ice.  I do not accept some of the cocaine was for consumption by the defendant.

10.   In deciding how much weight should be attached to the fact some of the ketamine was for the defendant’s own consumption I have considered the decision in HKSAR v. WONG Suet-hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34.  I am satisfied this makes only slight difference to the sentence to be imposed. I reduce the starting point by 3 months to one of 4 years and 9 months imprisonment.  Giving the defendant full credit for his plea of guilty he is sentenced to 3 years and    2 months imprisonment on charge 1.

11.  In respect of the possession of the two inhaling devices I take as my starting point 6 months imprisonment.  Giving the defendant full credit for his plea of guilty he is sentenced to 4 months imprisonment.  Notwithstanding the drug is ice, a different drug to those subject of the trafficking charge, I am satisfied this charge does not increase the defendant’s overall criminality, in particular the court having accepted some of the ketamine was for his own consumption.  Accordingly I order the sentence to be served concurrent to the sentence on charge 1.

12.  On the 20th April this year the defendant was found to be in breach of the probation order in TWCC 3463/2007 and was resentenced for the drug offence to 1 month suspended for 3 years.  The defendant is in breach of that suspended sentence. I am satisfied it would not be unjust to activate the sentence, which is activated and ordered to be served consecutively to the sentence imposed today.