HKSAR v. Cheng Kam Fung

HCCC 382/2017

[2018] HKCFI 574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 382 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant pleaded guilty before a magistrate to one charge of trafficking in dangerous drugs and was committed to the Court of First Instance for sentence. In sentencing, I have considered the whole circumstances of the case including its nature and facts, in particular, the type and quantity of the dangerous drugs concerned, background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarised as follows. Police mounted an operation in a bar which comprised three rooms and a sitting room. Officers kept observation before business formally started at the bar. During their observation, the defendant entered the bar alone. He stayed in the sitting room. When the bar started business, officers entered and declared to conduct a check. Two rooms were checked and nothing illegal was found. The other room was closed and locked, but the light inside was on. When officers knocked on the door, there was no response. Officers looked inside and saw the defendant throwing something out of the window. The items thrown out were seized by officers standing guard nearby.

When the defendant later opened the door, he tried to flee, but was subdued. He was the only person inside the room. Cash of $10,654 was found on him. Inside the room, a bag containing a small quantity of ketamine, as well as items like notebooks, resealable plastic bags and gloves were found. The items thrown out by the defendant were ketamine, methylenedioxy, methamphetamine and nimetazepam. Dangerous drugs which have been in the possession of the defendant were a total of 181.96 grammes of a solid containing 146.53 grammes of ketamine, 4.93 grammes of a solid containing 3.17 grammes of 3,4 methylenedioxy methamphetamine and 0.07 grammes of nimetazepam.

I was told that the defendant is now 28 years old. He received education up to Form 5 and then had worked as a renovation worker. He had been living with his family in a public housing flat. This is the first time the defendant has been convicted of a dangerous drug related offence. The only previous conviction he has was in 2004 for an offence of burglary. A probation order was imposed on him. It is a spent conviction.

Learned counsel for the defendant, Mr Leung, urged the court to take into account that the defendant had pleaded guilty at the earliest opportunity. It shows his real remorse. He also informed the court that the defendant engaged quite heavily in gambling due to bad influence of friends and incurred a debt. Though, it was not a heavy debt, the defendant was tempted to earn some quick money to clear it and in the circumstances, he committed the offence.

The defendant's mother and sister are in court to show their support. They and the father of the defendant wrote a letter to court saying that the defendant is a person of good nature and filial to his parents. They are confident of his determination to turn over a new leaf and ask for leniency.

The Court of Appeal held in SJ v Hii Siew-cheng [2009] 1 HKLRD 1, that in a case of trafficking in ketamine, if the narcotic content is between 50 to 300 grammes, the sentence should be 6 to 9 years. The defendant was in possession of two other types of drugs. As the potential harm of the other two drugs is relatively lower and the quantity of these two drugs was small, the effect on sentence is minimal, save that the possession of more than one type of drugs amounts to an aggravating factor for which I will enhance the starting point by about 6 months.

Selling dangerous drugs at a bar is also an aggravating factor. It was likely that the defendant was going to do so, but in all the circumstances, I do not consider it safe to draw the inference that he was going to sell drugs there.

Having considered the whole circumstances, in my judgment, a starting point of 7 and a half years is appropriate. The defendant is entitled to a one-third discount for his guilty plea and the remorse he has expressed. In all the circumstances, having regard to what learned counsel said on his behalf, I am of the view that this is the extent of discount the defendant is entitled to.

For these reasons, you are sentenced to an imprisonment terms of 5 years.