HKSAR v. Cheung Ka Wing

HCCC 207/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 207 OF 2017

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REASONS FOR SENTENCE

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1.On 26 June 2017, the defendant pleaded guilty in the Magistrate’s Court to the offence of trafficking in a dangerous drug on 3 May 2016, consisting of 659.5 g of a powder containing 273.09 g of ketamine. The retail value of the ketamine at the time of the offence was about $86,000.

2.The summary of facts agreed by the defendant in entering his plea of guilty can be summarised as follows.  On 3 May 2016, in the early morning, the defendant was one of three occupants in a taxi.  He was sitting on the nearside rear passenger seat.  A team of police officers had the taxi under observation.  At one stage the taxi stopped at a car park entrance and the defendant alighted, talking on his mobile phone and then returning to the taxi.  Moments later the taxi stopped again and the defendant alighted, talking on his mobile phone.  He was behaving suspiciously and the police officers decided to intercept him.  The police officers were in plainclothes. They showed the defendant their identity cards and demanded that he be searched.  At this point, the defendant tried to escape but was apprehended and subdued but only after a vigorous struggle. 

3.The police officers then searched the defendant and found in his trouser pocket a plastic bag with 6.45 g of a powder containing 3.69 g of ketamine, cash of $6000 and one mobile phone.  Inside the taxi, the police officers found a recycle bag on the floor in front of the near side rear passenger seat.  Inside the recycle bag were 4 plastic bags each consisting of 198 g of powder containing 102 g of ketamine; 200 g of powder containing 80.1 g of ketamine; 255 g of a powder containing 87.3 g of ketamine; and 0.05 g of a powder containing ketamine; and 2 plastic bags each consisting of 213 g of a powder containing para-aminobenzenesulphonamide and traces of a powder containing para-aminobenzenesulphonamide (a Part 1 Poison). The defendant has not been charged in relation to the Part 1 Poison.

4.In a subsequent video recorded interview, the defendant stated that on 2 May 2016 he asked “Lai Mang Chai” to lend him $6,000.  They met the next day in Yuen Long as arranged by Lai Mang Chai, who gave him $6,000.  They then got into a taxi and Lai Mang Chai directed the driver to go to Sheung Shui.  When they arrived at Sheung Shui MTR station, Lai Mang Chai instructed the defendant to deliver a recycle bag at a certain location at Shun Yan Garden in Sheung Shui.  Lai Mang Chai alighted from the taxi. 

5.When the defendant arrived at Shun Yan Garden, he opened the recycle bag and saw bags of white powder.  He suspected that they were dangerous drugs.  He felt surprised and alighted from the taxi to have a cigarette.  When he was about to make a phone call he was intercepted by the police.  He said he put up a struggle because he was in breach of his supervision order imposed by the Correctional Services Department and was afraid of being arrested.  He said the bag of ketamine found in his trousers pocket was purchased by him on 2 May 2016 for $600 which was for his own consumption.  He admitted that he had been consuming ketamine for 4 to 5 years and would usually consume 2 grammes a day.  He said he was a casual worker earning about $500 to $600 a day. 

6.The defendant by his plea of guilty admits that at the time of the offence he was trafficking in the ketamine. 

7.The defendant is 24 years old.  He received education up to secondary two level.  After he left school, he did a number of part-time jobs as a delivery and store worker.  At the time of the offence, he was living with his family in a public housing unit.  He admits to being a member of a triad society since 2008.  He also admits to consuming ketamine since he was 16. 

8.The defendant has prior convictions for drug offences.  In March 2009, he was convicted of trafficking in and possession of dangerous drugs and ordered to attend a rehabilitation centre.  In September 2011, he was convicted of possession of dangerous drugs and ordered to attend a drug addiction treatment centre.  In June 2015, he was again convicted of possession of dangerous drugs and ordered to attend a drug addiction treatment centre. 

9.Ms Liza Li, for the defendant, urges me to pass a lenient sentence on the defendant.  She submits that the small quantity of drugs found in the defendant’s trouser pocket were for his own consumption. The narcotic content of those drugs were 3.69 grammes and as properly acknowledged by Ms Li, this would have little if any impact on the sentence to be passed according to the tariff case given the large quantity of drugs involved.  In any event, the defendant admitted that the drugs seized from him were for trafficking and the drugs found in his trouser pocket do not satisfy the test of “all or a significant proportion” of the drugs being for self-consumption.  See HKSAR v Wong Suet Hau and Anor [2002] 1 HKLRD 69 at paragraph 34, and HKSAR v Tsoi Man Chun, CACC 414/2015, 27 March 2017, unreported.  Except for the defendant’s guilty plea, there is no other meaningful mitigation that can be advanced on his behalf.  He has been consistently in trouble with the law in relation to drugs and has been given two opportunities to rid his drug addiction by attending a drug addiction treatment centre, but unfortunately this has not been successful.  He is not deserving of lenient treatment in the sentence to be passed.

10.The sentencing regime for trafficking in ketamine is governed by guidelines laid down in S for J v Hii Siew Cheng [2009] 1 HKLRD 1.  The quantity of ketamine involved is 273.09 grammes and this falls within the tariff band of 50 to 300 grammes for which a guideline sentence of 6 to 9 years’ imprisonment is suggested. 

11.I will impose a starting point of 8 years and 8 months’ imprisonment for which the defendant will receive a one third discount for his guilty plea at the earliest opportunity to 5 years and 10 months’ imprisonment.

12.Accordingly, the defendant is sentenced to 5 years and 10 months’ imprisonment.

Ms Lilly Wong, SPP of Department of Justice, for HKSAR

Ms Liza Li, instructed by Ivan Tang & Co., for the defendant