HKSAR v. Cheung King Sang

DCCC 100/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 100 OF 2017

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REASONS FOR SENTENCE

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Introduction

1.The defendant pleaded guilty before me to two counts of   offence, namely, charge (1) of trafficking in dangerous drugs, the drugs in question are:-

(a) 11.10 grammes of a solid containing 5.65 grammes of ketamine;

(b) 0.22 grammes of a solid containing 0.20 grammes of cocaine;

(c) 10 tablets containing 0.07 grammes of nimetazepam.

And charge (2) of possessing obscene articles for the purpose of publication, contrary to section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap 390. The number of obscene compact discs (CD) seized is 7,730.

Facts

2.Police raided a shop at Temple Street manned by the defendant in the afternoon of 22 October 2016, where the police found the drugs in question on the ground floor of the shop and a large number of obscene CDs on its mezzanine floor.

3.The drugs (ketamine and cocaine) are separately (not mixing together) put into 16 re-sealable plastic bags together with a foil pack of 10 tablets of nimetazepam.  Also found are 35 new resealable plastic bags together with the drugs.

4.Police discovered the 7,730 obscene CDs on the mezzanine floor with the sale records and signs showing the prices of the CDs.

5.A random selection from 10 of the discs by the police show images of sexual intercourse of man and woman including oral sex with their sex organs clearly seen.

6.In a subsequent interview with the police, the defendant admitted, inter alia, that he rented the shop from a friend for $36,000 to sell obscene CDs, only started the business for about a month, and had already paid about $65,000 for the inventory.  He has been a drug addict for 17-18 years and the drugs found in the shop was for his own consumption.

Mitigation

7.The defendant, aged 40, has a rather appalling criminal record  - 39 previous convictions, the best part of it is to do with dishonesty offences, only 3 of them related to drugs but trafficking is his first offence, so is the obscene article offence.

8.He is a married man with a 7-year-old daughter and the family live in a public housing unit.  Before the offence, the defendant, counsel said, not having a payroll job, could only do part-time delivery work earning $8,000 a month on average.  His wife has recently been unemployed as she lost her job in a restaurant in March this year (2017).  The fact that defendant opened the shop for the sale of obscene CDs was just to enhance the household income since his daughter and mother depended on him financially, counsel said. 

9.As far as the drugs are concerned, it is submitted by the defence that 25% of them is for the defendant’s own consumption.

Reasons

10.Faced with trafficking in more than one kind of drug, the Appellate Court has suggested a number of different approaches in sentencing, like individual or combined approach, but I don’t think I need to concern about that in the instant case because the other kinds of drug (cocaine as well as nimetazepam) are of insignificant amount, compared to ketamine, so as to have a direct bearing on the overall sentence.  In the circumstances, I would simply ignore them when working out the sentence for trafficking.

11.It is submitted by the defence that 25% of the drugs was for the defendant’s own consumption, but defence counsel said that the prosecution could only agree to 20%; whichever percentage one subscribes to, it can hardly be said to be of significant proportion so as to warrant a further reduction in sentence (See Liu Ming Sze CACC 103/ 2016).

12.There are sentencing guidelines for trafficking in ketamine; for the range from 1 g to 10 g, a term of 2 to 4 years is to be considered.  Given the amount of ketamine in which the defendant trafficked, I take 3 years as starting point.

13.Insofar as the obscene CDs are concerned, in the case of Chan Mau Lung HCMA 61/2003, the Court of Appeal, hearing an appeal from Magistracy, said in paragraphs 32 & 33 of the judgment:-

“32. Unfortunately, we have not been provided with adequate information or data to enable us to specify what constitutes large quantity. However, from the cases cited, it appears that anything less than 100 should not be classified as large quantity.”

“33. We are also persuaded that in cases of utter depravity and repulsiveness, such as bestiality, perverted sexual acts with children, sadistic acts, acts of necrophilia and the like, the starting point has to be adjusted upwards.”

14.While I accept that the CDs in the instant case are not something out of the ordinary, that is showing only the usual sexual acts between man and woman, but the quantity itself is huge- it can only be described as large.  Considering the quantity of discs seized, I take 2 years as starting point.

15.Other than the plea of guilty, there is no substantial mitigation available to the defendant.

Sentence

16.Giving 1/3 discount for his plea, the term for charge (1) is reduced to 2 years and for charge (2) 16 months.

17.The two charges are two separate and distinct offences and in theory the terms should run consecutively to each other, but taking into account the totality principle, I order that the term of charge (1) be run consecutively to one year of charge (2), the rest concurrently.

18.The total term is one of 3 years imprisonment.