HKSAR v. Au Ka Chung

DCCC 258/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 258 OF 2016

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is ketamine.

Summary of Facts

2.About 11:25 p.m. on 14 December 2015, customs officers intercepted the defendant at the Customs Arrival Hall of Lok Ma Chau Control Point for customs clearance.

3.Upon search, a plastic bag which contained 53.66 grammes of a powder containing 46.51 grammes of ketamine was found inside the defendant's underpants.

4.Under caution, the defendant claimed that the ketamine was for his self-consumption; he bought it in Shenzhen for $1,500.

5.The defendant now admits that he possessed the ketamine for the purpose of unlawful trafficking.

Mitigation & Sentence

6.The defendant is now 43 and has 2 conviction records, none of which is drug-related.  Both records are dated over 20 years ago.  Defence counsel Mr. LEE informed me that the defendant is a casual restaurant worker earning $12,000 per month.  He is divorced and resides with 2 daughters (aged 14 and 12) in the mainland. 

7.In mitigation, Mr. LEE submitted that prior to his arrest, the defendant had to travel back and forth between the mainland and Hong Kong to work.  He has been a ketamine abuser for about 10 years, but would not take drugs in front of his daughters.  In the evening of his arrest, the defendant had dinner with his daughters and was on his way back to Hong Kong to work on the following day.  Mr. LEE further submitted that it is cheaper to buy ketamine in the mainland.  The defendant pleaded guilty to the charge on the basis of importing.  The entire quantity found was for his own consumption.  Finally, Mr. LEE submitted that the defendant's daughters (who are mainland residents) are now under the care of mainland social welfare authority.  A letter written by the 2 girls and their photos taken at the children's home were placed before me.

8.A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders. 

The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see SJ v HII Siew Cheng [2009] 1 HKLRD 1). For 10 to 50 grammes, the sentence ranges from 4 to 6 years' imprisonment.

9.In the present case, the defendant trafficked in 46.51 grammes.  I adopt a starting point is 5.5 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 44 months.  I have borne in mind the comments made by the Court of Appeal in HKSAR v MAK Wai-ming [2012] 2 HKLRD 418 on the sentencing of importing drugs for self-consumption.  I am surprised that despite his claim for having been a ketamine abuser for many years, the defendant has no drug-related conviction record.  On the other hand, based on his DATC Report, I am unable to reject his claim.  Having balanced the latent risk factor and the self-consumption element, I am prepared to grant the defendant a further discount of 8 months.  I sentence the defendant to 36 months' imprisonment.