HKSAR v. Cheung Kam Chung

HCCC 7/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 7 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant has been convicted on his own plea of the following charges: Count 1, trafficking in a dangerous drug, namely 175.47 grammes of a powder containing 143.23 grammes of ketamine; and Count 2, possession of a dangerous drug, namely 5.35 grammes of a powder containing 4.26 grammes of ketamine.

The Summary of Facts admitted by the defendant provides, inter alia, that at around 7.40 am on 19 June 2014, the defendant was returning to Hong Kong from the Mainland via the Lo Wu Control Point. He was intercepted at the Customs Arrival Hall and was taken to a room for a search.

Underneath the shoe pad of the defendant’s left shoe, two plastic bags, one containing 74.33 grammes of a powder containing 61.31 grammes of ketamine, and another containing 7.90 grammes of a powder containing 6.69 grammes of ketamine, were found. Meanwhile, concealed underneath the shoe pad of his right shoe were two further plastic bags, one containing 85.52 grammes of a powder containing 68.48 grammes of ketamine, and another containing 7.72 grammes of a powder containing 6.75 grammes of ketamine.

The defendant was arrested. Under caution, he stated, inter alia, that he bought the drug from a friend in Shenzhen for $10,000-odd.

The defendant was taken back to his residence at 23B4, Wo Hop Shek Village, Wo Hing Road, Wo Hop Shek, Fanling, New Territories, for a house search. Entry was gained using the keys found on him.

Inside an opened box on top of a drawer, one plastic bag containing 5.35 grammes of a powder containing 4.26 grammes of ketamine, two electronic scales and a number of empty resealable plastic bags were found.

The defendant was cautioned again. He claimed that the substance found inside the box was “Ice”, and that it was the leftover from his earlier consumption.

A further search of the premises produced a CSSA certificate with the defendant’s name on it.

At the time of his arrest, the defendant had two mobile phones, two Octopus cards and cash of HK$900 and RMB60 on him.

The estimated street value of the dangerous drug seized was HK$21,336.76.

In the Summary of Facts, the defendant expressly admitted that he possessed the dangerous drug seized from him at the Lo Wu Control Point, namely 175.47 grammes of a powder containing 143.23 grammes of ketamine, for the purpose of trafficking.

By way of personal background, the defendant is 55 years of age. He was born in China in July 1960. The defendant has received education up to Primary level. At the time of his arrest, the defendant worked as a salesman in a cemetery earning around HK$10,000 a month. He was divorced, with one daughter and one son.

The defendant has 11 previous criminal convictions, three of which are for possession of dangerous drugs. The defendant does not have any previous conviction for trafficking in a dangerous drug.

By way of mitigation, Mr Thomas Iu submitted on behalf of the defendant that he is very sorry for having committed the offence, that the defendant has a very long history of drug addiction, and the defendant committed the trafficking offence in the present case in order to support his addiction. Mr Iu urged upon the court to give the defendant the full one-third discount for his guilty plea.

I shall deal first with the proper starting point for sentence on Count 1.

The tariffs set out by the Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 are applicable in this case.

In the Hii Siew Cheng case, the Court of Appeal held that for trafficking in between 50 to 300 grammes of ketamine the proper sentence after trial should be 6 to 9 years’ imprisonment.

In my view, following the guidelines in the Hii Siew Cheng case, and based on the quantity of the narcotic involved (143.23 grammes of ketamine), the proper initial starting point for sentence on Count 1 should be 7 years and 1 month’s imprisonment.

The defendant was caught trying to have the drug in question brought from the Mainland, China into Hong Kong. The initial starting point of 7 years and 1 month’s imprisonment should be enhanced by 3 months for the international element in the present case [see:HKSAR v Chung Ping Kun [2014] 6 HKC 106, at paragraph 9].

This would take the starting point on Count 1 up to 7 years and 4 months’ imprisonment.

I will give the defendant the full one-third discount for his guilty plea.

The defendant is accordingly sentenced to 4 years and 10 months’ imprisonment on Count 1.

Regarding Count 2, the defendant has been convicted on his own plea of possessing 5.35 grammes of a powder containing 4.26 grammes of ketamine.

For this offence, I would adopt a starting point of 12 months’ imprisonment. This should be reduced by one-third to reflect the defendant’s guilty plea. This results in a sentence of 8 months’ imprisonment on Count 2.

I then have to give anxious consideration to the totality principle in order to arrive at a correct overall sentence. This is particularly so in the present case: for even if the defendant had been convicted of the more serious offence of trafficking on Count 2, the quantity of narcotics in the two counts would be combined to achieve a just overall sentence.

Having done so, I consider that it would be appropriate to order the sentence on Count 2 to run wholly concurrently with the sentence on Count 1, and I will so order.

On Count 1 of trafficking in a dangerous drug, you are sentenced to 4 years and 10 months’ imprisonment. On Count 2 of possession of a dangerous drug, you are sentenced to 8 months’ imprisonment. The sentence on Count 2 is to run concurrently with the sentence on Count 1. This results in a total sentence of 4 years and 10 months’ imprisonment.