HKSAR v. Chung Ming Chun

DCCC 640/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 640 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty today to two charges. Charge 1 is trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134. The drugs involved are 95.72 grammes of a powder containing 73.95 grammes of ketamine.

2.Charge 2 is a possession of dangerous drugs charge, contrary to section 8 of the same ordinance, where the defendant had in his possession 0.9 grammes of a solid containing 0.41 grammes of cocaine.

3.The facts of this case are straightforward.  On 28 April this year, at about 2.30 pm, Customs officers stopped and searched the defendant at a staircase on the 30th Floor of Ying Tai House, Fu Tai Estate, Tuen Mun.

4.After a search of the defendant, the officers found four plastic bags containing the cocaine in a pocket of the defendant’s T‑shirt.

5.Under caution, the defendant admitted the cocaine was for his own consumption.

6.After the defendant’s arrest, there was a home search.  He lived in the same building in Fu Tai Estate.  The home was rented by the defendant and his elder sister.  During the search, officers found a small packet of ketamine on top of a cabinet.  It contained 1.15 grammes of pure ketamine.  Another bigger packet of ketamine was found inside a shoe. That contained 72.8 grammes of ketamine.  There was also paraphernalia that one would normally associate with packing drugs.  This included two pairs of scissors, 184 ziplocked bags, an electronic scale, and some tin foil.

7.Under caution, the defendant only admitted the drugs were for his own consumption.  He refused to disclose how he had obtained those drugs.

8.Today the defendant’s plea is on the basis that a portion, one-fifth of the drugs of Charge 1, were for his own consumption, because he is a drug addict.

9.The defendant does have a previous conviction: in 2014 he was sentenced to a drug addiction treatment centre order for possession of dangerous drugs.  In total, the defendant has eight convictions from four appearances in court.  Three of those relate to possession of dangerous drugs, and there is also a previous conviction for trafficking in dangerous drugs, where he was sentenced to a training centre order in January 2010.

10.I have been told today that the defendant was released from drug addiction treatment centre in December 2014.  Five months later, he was arrested for these offences today.  Clearly, the defendant has not learnt his lesson, not quit his drug habit, or understood that trafficking in dangerous drugs is very serious and an immoral way to earn quick money.

11.The defendant is still young enough to not spend the rest of his life in and out of prison.  I have heard mitigation put forward on the defendant’s behalf.  The defendant is 22 years old, single, and I have been told that when he does work, he supports his family.  I have also been told that he trafficked dangerous drugs for quick money and drugs for his own consumption.  All that can be said on the defendant’s behalf has been said.

12.The prosecution does not object to the mitigation put forward that a portion of the dangerous drugs found at the home was for the defendant’s own consumption.  The defendant did not admit trafficking any drugs to the police or under caution.  The defendant would not tell the police where the quantity of drugs came from.  I accept his mitigation that a portion was for his own consumption.  That in itself is an offence, and a latent risk exists that it is possible some of that quantity would be shared or consumed by others.  That latent risk also applies to Charge 2.  The defendant had a quantity of cocaine on him in public, not stored at home.

13.The Court of Appeal has set down guidelines for trafficking ketamine.  I referred myself to Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323.  The relevant tariff here is where between 50 to 300 grammes of ketamine is trafficked, a starting point of between 6 to 9 years is appropriate.

14.Here, mathematically speaking, Charge 1 would attract a starting point of 6 years and 3 months. 

15.Defence counsel relies on the authority HKSAR v Chow Chun Sang CACC 135/2011.  That authority discusses in detail the situation where a portion of the drugs would be for self‑consumption and the rest for trafficking.  The Court of Appeal accepts a discount of between 10 to 25 per cent can be applied to the starting point in such situations.  I referred myself to that authority, in particular paragraphs 19 to 21.

16.Defendant, please stand up.  After hearing mitigation and taking in to account the facts of the case, the quantity of drugs, as well as the two authorities I have just referred to, I will, for Charge 1, take a starting point of 6 years and 3 months.  I will reduce that by 12 months, or 16 per cent, for the mitigation put forward that a portion of the drugs was for self‑consumption.

17.Therefore, the starting point for Charge 1 is reduced to 5 years and 3 months.  It is further reduced by one‑third for your plea today.

18.Therefore, for Charge 1, you are sentenced to 3 years and 6 months.

19.For Charge 2, possession of dangerous drugs, I take a starting point of 2 years’ imprisonment.  You have pleaded guilty; you are entitled to a discount of one‑third from that starting point.

20.That is reduced to 1 year and 4 months.

21.I will consider the totality principle and the timing of both offences, and order 6 months of Charge 2 be served consecutively to Charge 1.

22.The total sentence for Charge 1 and 2 is 4 years’ imprisonment.

COURT: Do you understand that sentence?