HKSAR v. Yeung Kin Chun

DCCC 793/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 793 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to one offence of trafficking in a dangerous drug.

2.Those drugs are 0.77 grammes of cocaine and 5.87 grammes of ketamine.  The charge arises out of a stop and search operation on 4 July 2016 in Wan Chai. 

3.The defendant was intercepted and body searched, and a resealable plastic bag was found in the front pocket of his jeans, and also some drugs were taken out.  Two further resealable plastic bags were taken out from the defendant’s underwear, and those bags contained the drugs, the subject of the charge. 

4.On arrest and caution, the defendant said he bought those drugs for his own consumption.  The drugs themselves were packaged as follows:

1) The four plastic bags which contained the cocaine;

2) Five plastic bags contained the ketamine; and

3) A plastic bag with a $100 banknote folded into a package which contained small quantities of cocaine.

5.The drugs were valued at $2,384. 

6.The defendant admits he was in possession of those drugs for the purpose of unlawful trafficking. 

7.Defendant’s antecedent showed him to be aged 25 years old, educated to Form 5, and a self-employed truck driver.  He has two previous convictions in 2010 for an offence of what can be described a money laundering, and was sent to a Drug Addiction Treatment Centre. Subsequently, 2013, offence of possession of dangerous drugs, he was sentenced to a Drug Addiction Treatment Centre. 

8.As far as the defendant’s mitigation is concerned, he has indicated a plea of guilty at an early stage.  He submits that he had been a drug addict for nearly 10 years.  There is an abundance of objective support for that, firstly, his sentencing to Drug Addiction Treatment Centre on two occasions, that is clearly for the treatment of the addiction. 

9.And also on receipt into the custody of the Correctional Services Department, urine test showed various drugs to be in his body, as a result of an immunoassay test.  The test being conducted on the defendant’s urine has shown that he was positive to cocaine, so you certainly consumed cocaine recently before arrest. 

10.As far as the mitigation, the defendant claimed that part of the dangerous drugs was for his own consumption.  He was unable to say what the specific amount was, because he purchased in bulk, and would be consumed over a period of time.  He would also share the drugs with friends.  Of course, any consideration of how much of the drug the defendant would consume would be somewhat speculative. 

11.In this case, the defendant asks for leniency, asks for consideration of the fact that not all the drugs would have been trafficked, as such, but with some to be consumed himself. 

12.As far as the drugs are concerned, we are dealing with two types of drugs here.  There is the 0.77 grammes of cocaine and 5.87 grammes of ketamine.  The drugs are all in combination.  The authority set out, there are at least two different ways of dealing with drugs where they are in combination. 

13.This case would appear to be one where the combined approach would be appropriate, in that case, the starting point is in terms of the most serious type of dangerous drugs, and then adjusted upwards in light of the quantity of the less serious drug, in order to arrive at an ultimate starting point.  That adjustment is not required if the less serious drug is present in insignificant quantity.  It has been said, where the combined is taken, the court rely on common sense in determining which type of drug is to be regarded as the more serious, hence forming the basis of the starting point.

14.It would be difficult, I think, when comparing cocaine and ketamine, to determine which is the more serious.  Both drugs are considered to be serious drugs in Hong Kong.  In respect of the quantity of ketamine, there is 5.87 grammes of that drug.  The starting point would lie within the sentencing range of 1 to 10 grammes, with a starting point for sentence of between 2 to 4 years of imprisonment. 

15.As far as the cocaine is concerned, the quantity is 0.77 grammes, where the Lau Tak Ming guideline is appropriate, and up to 10 grammes would be a sentence between 2 to 5 years’ imprisonment.  In fact, cocaine is seen to be slightly more serious, but the sentences were equally lengthy.  However, the cocaine is possessed here in a relatively small quantity. 

16.I consider, for determining a starting point to the overall, the figure to be taken is the one for ketamine, that being a larger quantity, with an adjustment upwards in this case for the quantity of cocaine.  As I said, the guideline sentence lies between 2 to 4 years’ imprisonment for ketamine.  I consider that quantity of ketamine, a figure of 3 years would be appropriate, adjust upwards by a further 6 months for the possession of the cocaine.  The starting point in sentencing in this case should be 42 months’ imprisonment. 

17.There is clear authority that where some part of the drugs is for own consumption, then an adjustment may be made for that. 

18.It is said that quantity must be a significant quantity.  Given that the defendant in this case is a long-term drug addict who had recently consumed drugs, I believe one can form the objective conclusion on the basis of that evidence, that he would consume a significant quantity of the drugs. 

19.The adjustment for this figure can lie between 10 to 25 per cent of the basic starting point.  It is a somewhat inexact calculation to be made, but I consider a deduction for that should be one of 6 months’ imprisonment.  This returns us back to a starting point of 3 years’ imprisonment overall.

20.The defendant is entitled to a one-third discount on this case.  This leads to a final sentence of 2 years’ imprisonment, and that is the sentence I impose.