HKSAR v. Chan Tai Ming

DCCC 174/2018

[2018] HKDC 1341

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 174 OF 2018

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to trafficking in dangerous drugs. 

2.On 18 October 2017 at around 00:45 a.m., patrolling police officers SPC 58706 spotted the Defendant acting furtively outside Kwai Chung Estate Bus Terminus, Kwai Chung Estate, Kwai Chung, in Hong Kong.  Police then intercepted the Defendant for enquiry.  Upon search, police found a plastic bag being hidden between the Defendant’s shorts and underwear.  Inside this plastic bag, police found:

(a) 19 plastic bags containing a total of 3.99 grammes of a solid containing 2.83 grammes of cocaine and another plastic bag containing 0.18 gramme of a powder containing 0.13gramme of cocaine, altogether 2.96 grammes of cocaine;

(b) 6 other plastic bags containing a total of 4.64 grammes of a powdercontaining deschloro-N-ethyl-ketamine, a compound structurally derivedfrom 2-amino-2-phenylcyclohexanone by substitution at the nitrogen atom with an alkyl group (controlled under Dangerous Drugs Ordinance, Cap. 134, First Schedule, Part I).

3.Police also found one mobile phone and cash HK$2,073.1 on the Defendant.

4.Police then arrested the Defendant for “trafficking in dangerous drugs”.  During a subsequent video-recorded interview, the Defendant under caution admitted that an unknown man instructed him to deliver the plastic bags and the substances therein but the Defendant did not receive any reward.

5.The street value of cocaine involved was approximately HK$3,829.4.

6.Dr. MAK Wing-lai, Tony, Consultant Chemical Pathologist of Hospital Authority Toxicology Reference Laboratory and the Chief of Service of the Department of Pathology and Deputy Hospital Chief Executive of the Princess Margaret Hospital, is of the opinion that the clinical effects of deschloro-N-ethyl-ketamine largely resemble those of ketamine. However, there are some significant differences. Studies showed that deschloro-N-ethyl-ketamine was associated with a remarkably higher incidence of impaired conscious level, neurological symptoms such as confusion, abnormal behaviour (in particular, convulsion), cardiovascular symptoms, and hypertension. All the above suggest that deschloro-N-ethyl-ketamine may lead to more severe neurological and cardiovascular toxicities compared with ketamine.

7.At all material times, the Defendant was in possession of the cocaine and deschloro-N-ethyl-ketamine involved in this case for the purpose of unlawful trafficking.

Mitigation

8.The Defendant is 54 years old.  He had numerous criminal records, a lot of which were for possession of dangerous drugs.  He has no record for drug trafficking. 

9.His solicitor today Mr. So informs me that the defence is not in a position either to accept or refute the opinion of Dr. Mak.  However, the defence does not want to have a Newton hearing.  Eventually I am satisfied that Dr. Mak’s expert opinion is credible and reliable. 

10.His counsel Ms. Lam, who represented him at the last hearing, had suggested a starting point of about 44 months.  Mr. So echoes Ms. Lam’s suggestion.

Sentencing guidelines

11.The sentence for trafficking up to 10 grammes of cocaine is 2 – 5 years (HKSAR v Lau Tak-ming [1990] 2 HKLR 370).

12.The sentence for trafficking from 1 gramme to 10 grammes of ketamine is 2 – 4 years (SJ v Hii Siew-cheng [2007] 1 HKLRD 1).

Sentencing this Defendant

13.The prosecution informs me that this is the first case to prosecute on this new compound of ketamine. There is thus no statistics on the popularity or frequency of abuse by users. The prosecution asks this court to sentence on a par with the usual type of ketamine. I agree that this is the course I ought to take.

14.In fixing the starting point, I consider cocaine the more serious drug in term of potency and use the “combined approach”. The quantity of cocaine here may suggest 36 months. I take into account the quantity of deschloro-N-ethyl-ketamine and add another 9 months to it. From a starting point of 45 months, I deduct one-third for the timely plea of guilty. The sentence is 30 months.