HKSAR v. Chui Po Kam

DCCC 1023/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1023 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of doing an act preparatory to or for the purpose of trafficking in a substance believed to be a dangerous drug, contrary to section 4(1)(c) and subsection(3) of the Dangerous Drugs Ordinance.

2.The charge arises out of an operation by the police on 25 July 2016 in the evening of that day.  A mobile patrol saw the defendant and another man get off a taxi in Yuen Long.  The defendant had a bag in his left hand.  Eventually the defendant was intercepted for search.  A red plastic bag was seized from inside the bag the defendant was carrying, and inside that was a further resealable transparent plastic bag containing white powder.

3.The defendant told the police he had received a monetary reward to deliver dangerous drugs to the Long Ping Estate.

4.That plastic bag contained 472 grammes of a solid which did not contain any substance controlled under the Dangerous Drugs Ordinance.

5.The facts also contain some details of the drug ketamine.  The defendant has agreed to paragraph 9 of the Admitted Facts, which says the defendant did an act preparatory to or for the purpose of trafficking in a substance believed to be a dangerous drug, and that is named as ketamine.

6.The average purity of ketamine in July of 2016 was 45 per cent.  That would mean that if the powder were a dangerous drug, then the narcotic content of that would be 212.4 grammes.

7.The value of 472 grammes of ketamine with that narcotic content - that is, 45 per cent - would be $112,336.

8.As far as the defendant’s background is concerned, these are set out in his antecedents statement.  He is now 49 years old.  He has worked as a construction worker and was unemployed and a CSSA claimant at the time of arrest.  It says he has claimed to be disabled up to 50 per cent, and also a drug addict.

9.The defendant’s claim to be a drug addict is supported clearly by his criminal record, which shows a large number of previous convictions:  22 in total; the bulk of which are in relations to drugs, particularly possession of dangerous drugs.  The defendant did have a trafficking in dangerous drugs conviction back in 1997.  The defendant was released from Hei Ling Chau on 15 September 2015.  That would have been after a conviction in 2014 for possession of a dangerous drug.

10.As far as the defendant’s mitigation is concerned, as I said, he is disabled and requires a walking stick for walking now.  He is a drug addict.  He has an unhappy life and indulges himself with drugs to relieve his discomfort and also his depression.  He has been in receipt of disability allowance since the year 2000.

11.As I said, the offence was neither well planned nor formed part of an organised crime.  He admits that he committed the offence out of greediness.  He has been co‑operative, and sought to plead guilty at an early opportunity, and would seek to rid himself of his addiction to drugs, although clearly his attempts to do that in the past have been unsuccessful.

12.As far as sentencing is concerned, of course a starting point for sentence must be determined.  In this case, the defendant is doing an act preparatory for the purpose of trafficking in a substance he believes to be dangerous drugs.  Of course, the substance is not a dangerous drug.  The court, in this case, is proceeding on the basis that the defendant believed that substance to be the drug ketamine.

13.There is some guidance in the cases as to the correct approach.  The approach to sentencing appears to be to have regard to the dangerous drug that the defendant believed that they had dealt with, whilst at the same time according an appropriate reduction in sentence in recognition of the fact that the substance was not a dangerous drug which would, if it were a dangerous drug, have brought harm to the ultimate user.

14.In this case, sentencing proceeds on the basis that the substance was believed to be 472 grammes of a substance believed to be ketamine.  The normal narcotic content of such a quantity would be, according to the facts, 45 per cent, or 202.4 grammes.  Were that the drug ketamine, it would place it in the guideline sentence of 50 to 300 grammes, which would be in the region of 6 to 9 years’ imprisonment. Proceeding on the basis that this was the drug ketamine, then of course the actual sentence would lie, on the basis of pure mathematical calculation, within the 7 to 7½ year guideline.

15.The defendant does have a previous conviction for trafficking, but it is of some antiquity, dating back to 1997.  I do not consider it to be necessarily an aggravating factor in this particular offence.

16.Of course from the notional starting point of between 7 to 7½ years, there must be a reduction for the fact that the substance purported to be trafficked in or going to be trafficked in was harmless.  There is no evidence before me that it could have been put to any other purpose such as cutting the drug.

17.In the High Court case of HKSAR v Mak Chin Kei HCCC 62/2015, the reduction in that case was in excess of 50 per cent for this consideration, which would put the consideration of sentence, in my view, somewhere between, in this case, 33 months and 42 months.

18.Having regard to all the factors in this case, what I shall do is adopt a starting point for sentence of 33 months’ imprisonment.  The defendant is entitled, because of his indication of early plea of guilty, to a one‑third discount from that figure, which leads me to a final figure of 22 months’ imprisonment.