HKSAR v. Tsang Chi Ho

DCCC 15/2018

[2018] HKDC 990

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 15 OF 2018

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Reasons for Sentence

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1.The defendant has pleaded guilty to three charges today. Two charges of trafficking in a dangerous drug. The first charge of trafficking involves 71.7 grammes of a powder containing 27.1 grammes of ketamine. The second charge involves 2.1 grammes of a powder containing 0.84 grammes of ketamine and 208.07 grammes of a solid containing 71.5 grammes of ketamine. The third charge is a possession of apparatus fit and intended for the inhalation of a dangerous drug, namely cocaine.

2.The facts of this case are straightforward.  On 22 September last year at about 6 pm, a police officer saw the defendant leaving Flat 4 of a premises in Tai Po Road, Sham Shui Po.  He was intercepted and questioned.  He told the police that he lived in Room D of that flat.  He gave permission to the police to search the premises.  Nobody was inside the premises at that time.

3.The police then searched the defendant.  They found the ketamine of Charge 1 on the defendant’s person. 

4.The police then found all the ketamine of Charge 2 inside the defendant’s room in two locations.  They also found, amongst other things, a tenancy agreement for the room for the period between 1 April of 2017 and 31 March 2019 in the defendant’s name.

5.They also found many small transparent resealable plastic bags, three electronic scales, a plastic bag resealing machine.  All these items are what can be described as paraphernalia used to pack drugs.

6.The police also found a plastic bottle that had been modified with a yellow suction tube with liquid in it that contained traces of cocaine.  This was the apparatus used for inhaling cocaine, the item covered in Charge 3.

7.Under caution, the defendant told the police that all the ketamine and the cocaine was for self-consumption and that if there was any remaining ketamine that he did not consume he would sell it for money.  He also admitted that the bottle had been modified and was used by him for consuming cocaine.

8.In the facts, it was agreed that the street value of the ketamine found was just over $133,000.

9.I have heard in mitigation that the defendant was at the time of the offence 21 years old.  He is now 22 years old.  He does not have a clear record.  He has one previous conviction but it is not related to dangerous drugs.  In 2012 he was sentenced to Detention Centre for a robbery offence.

10.I have heard full mitigation.  Mr Leung has said all he can on behalf of the defendant.

11.The defendant left school in 2012, having only completed Form 3.  When he was arrested by the police, he was a drainage worker, earning about $9,500 a month.  He is single but he is engaged to be married to his girlfriend.  He does not live with his parents but he is close to them.  His mother is not well.  She is diagnosed as disabled.  Not only does she have a mental illness but she is also in poor physical health. 

12.I have seen medical reports explaining his mother’s physical illnesses. 

13.I have also seen a letter from the defendant’s parents who say he is a filial son who tries to support them financially as best he can, which is probably why he got into trouble with selling drugs or storing drugs.  He has been led astray by bad peers to earn money to help his family.  His parents say that they have visited him whilst he has been in remand and he has expressed genuine remorse.  They do genuinely believe he is remorseful and will turn over a new leaf when he is released.

14.I have also seen a letter of mitigation from the defendant’s girlfriend.  They have clearly been together for some time.  She is honest about him committing these offences out of greed, but says he did it for family expenses.  According to her, he has worked hard, she will stick by him until he has served this sentence and they will marry.

15.I have also seen a letter of employment and his work record for at least one month, September 2017, which shows his salary.  It also shows the long hours that he put in for one month.

16.I have considered mitigation, in particular these letters, and the remorse shown by the defendant’s plea, as well as the explanation put forward by defence counsel for the drugs being in the defendant’s premises.

17.There are guidelines for trafficking ketamine and I have considered those guidelines set out in the Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323.  Where between 50 to 300 grammes are trafficked, a starting point of between 6 to 9 years’ imprisonment is appropriate.

18.Here, the total amount of ketamine when I add up the drugs of Charges 1 and 2 total 99.44 grammes.

19.Defendant, please stand up.

20.The best approach is to add up the drugs of Charges 1 and 2, because the charges are connected and closely related.  The defendant was arrested with the drugs of Charge 1 on his person and the drugs of Charge 2 were found in the flat immediately after the drugs of Charge 1 were found on him.  I intend to add up the drugs of both charges and find the appropriate starting point and then sentence as if it were one charge, so to speak.

21.In order to find the appropriate starting point, I will take into account the facts of the case, the mitigation put forward, including the mitigation letters, the defendant’s age, and the fact that it is his first drug offence, as well as his plea and the remorse shown by the fact he has pleaded.

22.Having taken all those factors into account, I will take a starting point of 6 years and 3 months for Charges 1 and 2.  For Charge 3, I take a starting point of 9 months.

23.The defendant has pleaded guilty and is entitled to a discount of one-third.  That discount for Charges 1 and 2 is a discount of 25 months.  For Charge 3, that is a discount of 3 months.

24.After that discount is applied, for Charges 1 and 2, the defendant is sentenced to 4 years and 2 months; Charge 3, 6 months. All three charges to be served concurrently.  Total:  4 years 2 months.