HKSAR v. Cheung Sze Man

DCCC 519/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 519 OF 2015

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REASONS FOR SENTENCE

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1.The first defendant pleaded guilty to one charge of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (the first charge). The dangerous drug involved is ketamine.

Facts

2.At around 6:16 pm on 9 March 2015, police officers were observing a private car (V1) with the second defendant and a driver on board.  The car was parked outside No 356 Un Chau Street, Cheung Sha Wan, Kowloon. 

3.A few minutes later, police officers saw the first defendant alight from another private car (V2), walk towards V1 and talk to the second defendant.  Then, the first defendant took out $1100 from the right front pocket of her jeans and handed them to the second defendant.  In return, the first defendant got from the second defendant a white tissue paper wrapping a packet containing 13.4 grammes of a powder containing 5.93 grammes of ketamine and walked back to V2.

4.When police officers approached the first defendant, she dropped the packet of ketamine on the ground.  At the time of arrest, the amount of cash found on the first defendant was $183.

5.Call record analysis revealed that the first defendant had contacted the second defendant.

6.Under caution, the first defendant admitted that she bought the packet of ketamine for her friend as her friend did not know where to buy ketamine.  She made some calls and later received a call from an unknown caller asking her to find V1 at Un Chau Street.  Her friend gave her $1000 and she added $100 of her own money and paid the second defendant $1100 at V1. 

7.In her video-recorded interview, the first defendant further admitted that she called her friend Tai Tau with the mobile phone seized from her and asked for ketamine.  Later, a colleague of Tai Tau telephoned her and asked to meet her outside Un Chau Plaza, Sham Shui Po.  Her friend then drove her to the vicinity of Un Chau Plaza where they found V1.  After she had obtained the packet of ketamine from the second defendant, she walked back to V2 and was intercepted by the police.  She was scared and thus dropped the packet of ketamine on the ground. 

Mitigation

8.The first defendant is aged 24, single and was living with her mother before the arrest.  She has 1 previous conviction of possession of dangerous drugs in 2011 and was put on probation for 15 months, which was subsequently extended to 21 months.

9.In mitigation, it was submitted that the first defendant’s mother was suffering from depression and it was the first defendant who took good care of her mother.  Prior to the arrest, the first defendant had been working as a dancer and model in Singapore and she travelled frequently between Hong Kong and Singapore.

10.It was further submitted that the first defendant bought the drugs for her friend and partly for her own consumption.  It could be regarded as a case of “social trafficking” or “non-commercial trafficking”.

Sentence

11.The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1).  For trafficking in 1 to 10 grammes of ketamine, the sentence ranges from 2 to 4 years’ imprisonment.  The amount of ketamine trafficked by the first defendant is 5.93 grammes.  For this quantity, the appropriate starting point is 36 months’ imprisonment.

12.Regarding the claim for self-consumption and social trafficking, I have reminded myself the relevant principles in HKSAR v Wong Suet Hau & anor [2002] 1 HKLRD 69 and HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.  In the former case, it was clearly stated by the Court of Appeal that social trafficking involving small quantities of drugs, may in certain circumstances, be regarded as falling into the lower end of the sentencing scale but this factor should not, by itself, provide a general basis for imposing a lighter sentence.  In the latter case, the Court of Appeal held that a discount between 10% and 25% from the basic starting point would be appropriate in cases where all or part of the drugs were intended for trafficker’s own consumption.  In the present case, there is no evidence to rebut the allegation of self-consumption.  It is also clear from the facts that the first defendant added $100 of her own money in order to buy the packet of ketamine and she herself is also a drug abuser.  In the circumstances, I am prepared to accept that part of the drug was for her own consumption and therefore reduce the starting point by 4 months to reflect the discount for self-consumption. 

13.Since the first defendant pleaded guilty to the charge, she is entitled to the usual 1/3 discount on her guilty plea.  Therefore, the sentence will be further reduced to 21 months’ imprisonment.  I hereby sentence the first defendant to 21 months’ imprisonment.