HKSAR v. Tsang Chun Wing

DCCC 745/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 745 OF 2015

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REASONS FOR SENTENCE

1.Tsang Chun Wing you have pleaded guilty to one charge of trafficking in 141 grammes of a solid containing 121 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.In summary around 4:50 p.m. on 14 July this year the police searched your home at Flat E, 13th Floor, Healey Building, No. 2-4 Kik Yeung Road, Yuen Long.  The police found one transparent re-sealable plastic bag containing the ketamine together with twenty nine empty transparent re-sealable plastic bags; one mobile phone and $2,370 cash. 

3.I have carefully considered everything said on your behalf by Ms Hung, in particular that you have a young son who is looked after by your parents.  I have read your mitigation letter.  I take into account although you have previous convictions, including one for possession of drugs, you have no convictions for trafficking.

4.In Secretary for Justice v Hii Siew Cheng[2]the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 50 and 300 grammes sentence after trial falls within the range of 6-9 years imprisonment.  I am satisfied a starting point of 6 years and 9 months imprisonment is appropriate for trafficking in 121 grammes of ketamine. 

5.Under caution and in a video interview you said all the ketamine was for your own consumption.  Today Ms Hung tells the court that about 20% was for your own consumption and the rest for sharing with your friends.

6.Whilst I have my reservations that you shared the majority of the drugs with friends and kept about 20% for your own consumption, taking into account that you have a drug history for which you were sentenced to the DATC in 2010, I am prepared to accept some of the drugs were for your own consumption.  I therefore proceed to sentence on the basis that 20% was for your own consumption and the rest for sharing with your friends.

Social trafficking

7.In HKSAR v Wong Suet Hau[3]as applied in Hii Siew Cheng[4]the Court of Appeal said that except in cases involving very small quantities the fact of “social trafficking” was not in itself a general basis for imposing a lighter sentence.  Ms Hung does not submit a lighter sentence should be imposed because you shared your drugs with others.   I do not reduce the starting point by reason of “social trafficking”.

Own use

8.In deciding how much weight should be attached to the fact some of the ketamine may have been for your own use I have considered the decision in Wong Suet Hau, in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang[5] and HKSAR v Tsang Chung Keung[6]cited by Ms Hung.

9.From these cases a discount of between 10-25% has been held appropriate.  In Wong Suet Hau the Court of Appeal said that in most cases the difference will be slight[7]. A 10% discount would result in a starting point of approximately 6 years imprisonment.  A 6 year starting point is appropriate for trafficking in 50 grammes of ketamine. 

10.If 20% of the ketamine was for your own consumption this would mean you were trafficking in over 90 grammes of ketamine, which in itself would attract a starting point of about 6½ years imprisonment.  I am satisfied to reduce the starting point below that which would be appropriate for the amount you admit is for trafficking would be wrong in principle. 

11.Taking into account the quantity of ketamine; the packaging; the drugs were found in your residence; possession of drugs carries a sentence in any event; the latent risk factor and that you have no prior convictions for trafficking, I am satisfied the starting point should be reduced by 3 months to one of 6 years and 6 months imprisonment. 

12.Giving you full credit for your plea of guilty you are convicted and sentenced to 4 years and 4 months imprisonment. 

[1] Cap 134.

[2] [2008] 3 HKC 325.

[3] [2002] 1 HKLRD 69.

[4] At §98.

[5] [2012] 2 HKLRD 1121.

[6] [2015] 1 HKLRD 450.

[7] At §33.  Also see HKSAR v Wong Hon Chiu CACC 137/2015.