HKSAR v. Au Chun Kit

DCCC 254/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 254 OF 2017

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of “Trafficking in dangerous drugs”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The dangerous drugs involved are 47.38 grammes of ketamine and 0.07 gramme pf nimetazepam.

Summary of facts

2.At around 2:39 pm on 6 January 2017, police officers spotted a private car bearing registration mark UA 6619 (“the Car”) parked alongside the double yellow lines outside the entrance/exit of the car park of Kwai Chung Plaza, Nos 7-11 Kwai Foo Road, Kwai Chung, the New Territories.  The officers intercepted the Car and found the defendant seated at the driver’s seat.

3.As the defendant appeared to be nervous, the officers asked him to alight the Car and conducted a search on him.  Upon search, the officers found in the left front pocket of the defendant’s trousers a cigarette box containing 13 transparent resealable plastic bags containing 10.80 grammes of powder containing 4.68 grammes of ketamine and cash HK$8,100.

4.The defendant was arrested and cautioned at the scene.  Under cautioned, he admitted that the dangerous drug was ketamine and it belonged to him.

5.The officers then conducted a search on the Car.  They further found 2 plastic bags under the driver’s seat containing altogether 11 transparent resealable plastic bags containing a total of 42.70 grammes of ketamine and a foilpack of 10 tablets containing 0.07 gramme of nimetazepam.

6.A video-recorded interview was conducted on the defendant and in the interview he admitted the following:-

(a) a week before his arrest, he met a male named “Ah Long” at a park in Ngau Tau Kok, Kowloon who asked him to deliver drugs for HK$1,000 per day. “Ah Long” then gave him the keys of the Car and asked him to pick up the Car in an alley in Kowloon City;

(b) over the next few days, “Ah Long” gave him instructions by phone to pick up ketamine and handed the drugs to customers in the Car. Every time “Ah Long” would tell him the quantity of drugs to be given to each customer and how much each customer should pay. At the end of each day, he passed the money to “Ah Long”;

(c) he was waiting for customers before he was intercepted by the officers. The cash of HK$8,100 found on him was the money he received from customers that day.

7.The total street value of the dangerous drugs involved was estimated to be HK$29,234.

Mitigation

8.The defendant is now aged 23 and single.  He received education up to Secondary 4 level.  He had been working as a transportation worker before but he was terminated about 3 months before his arrest.  He is a person of clear record.  He lives with his younger brother and his grandmother.  I was told that the defendant’s mother deserted the family when he was 8 and his father passed away in 2011.  After that, he became the only person to take care of the family.

9.In mitigation, defence submitted that the defendant is very remorseful and he pleaded guilty at the first available opportunity.  In fact, the defendant made full confession to the police immediately after he was arrested.  Defence submitted that the defendant lost his full time job at the material time and his family was in financial difficulty.  The defendant committed the offence because he wanted to make some money to support his family.  He urged the court to impose a lenient sentence.

Sentencing consideration

10.There is no doubt that “drug trafficking” is one of the most serious offences.  Any person who commits this offence should be under no illusion that the court will deal with him/her leniently and long-term imprisonment is to be expected even for fresh offenders.

11.As there are two types of dangerous drugs involved in this case, the “combined approach” should be adopted in considering the appropriate sentence: HKSAR v Yip Wai Yin and Anor [2004] 3 HKC 367.  However, according to HKSAR v Wong Kin Kau [2010] 4 HKC 443, the Court of Appeal was of the view that the sentencing guidelines for ketamine can be applied to nimetazepam.  Therefore, the court can adopt the same guideline to consider the sentence of the two types of drugs in this case. 

12.For trafficking ketamine, the Court of Appeal set out the sentencing guidelines in Attorney General v Hii Siew Cheng [2009] 1 HKCLR 1.  For 10 to 50 grammes of ketamine, the sentence should be imprisonment of 4 to 6 years

13.The defendant trafficked 47.38 grammes of ketamine and 0.07 gramme of nimetazepam in the present case. Considered all the circumstances including his personal background, his relatively young age, his clear record and his difficult upbringing, I consider the appropriate starting point should be 5 years ie 60 months. There is no other mitigating factor other than the guilty plea.  According, after giving one-third for the guilty plea, the defendant is sentenced to 40 months’ imprisonment.