HKSAR v. Hung Chun Kit

DCCC 354/2019

[2019] HKDC 1587

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 354 OF 2019

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Reasons for Sentence

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Charge

1.The Defendant pleads guilty to a charge of unlawful trafficking in dangerous drugs, comprising ketamine and methamphetamine hydrochloride (“Ice”).   

Facts

2.On 19 December 2018, a team of police officers conducted an anti-narcotics operation in Kam Tin upon information.  A unit located at G/F, No. 93, Kam Tin Shi, Kam Tin Shi Street, Pat Heung, Yuen Long (“the Premises”) was targeted.  At around 9:00pm the same day, a woman (later known as the Defendant’s girlfriend) was seen walking out from the Premises.  Police officers revealed their identities and intercepted the woman.  With the woman’s consent, and also with the strength of search warrant, a house search was conducted in the Premises.  The Defendant and another woman (later known as a friend of the Defendant’s girlfriend) were found inside the Premises and their consents to house search were also obtained.

3.Upon house search, it was found on a wardrobe in a room jointly occupied by the Defendant and his girlfriend a red shoe box.  It was found in the red shoe box:

(1) A pink plastic box containing 6 plastic bags of suspected dangerous drugs (1plastic bag of which turned out not to contain any dangerous drug) (“Suspected Dangerous Drugs”);

(2) 2 electronic scales; and

(3) 6 packs containing in total 549 empty transparent re-sealable plastic bags.

4.The Defendant was arrested and cautioned for Trafficking in dangerous drugs.  Under caution, the Defendant claimed that those 6 packets of Ice and ketamine were for his self-consumption.

5.Upon arrest, it was found on the Defendant a bundle of 3 keys, a mobile, and cash of $640.

6.In the subsequent video-recorded interview conducted, the Defendant claimed, inter alia, that:

(1) The Suspected Dangerous Drugs were Ice and ketamine;

(2) They were for his self-consumption. He would consume 3.5 grammes of drugs each time;

(3) He bought the Dangerous Drugs from an unknown male in Tsuen Wan;

(4) His girlfriend and her friend had no knowledge of the drugs;

(5) The Premises were rented together by the Defendant, his girlfriend and a friend of his girlfriend. They all had the keys of the Premises.

7.The Government Chemist confirmed that the Suspected Dangerous Drugs seized were:

(1) 1 plastic bag containing 0.48 grammes of a solid containing 0.34 grammes of ketamine;

(2) 1 plastic bag containing 16.7 grammes of a solid containing 14.5 grammes of ketamine;

(3) 1 plastic bag containing 1.62 grammes of a crystalline solid containing 1.61 grammes of Ice;

(4) 1 plastic bag containing 1.94 grammes of a crystalline solid containing 1.94 grammes of Ice;

(5) 1 plastic bag containing 0.78 grammes of a crystalline solid containing 0.78 grammes of Ice.

((1)-(5) collectively “Dangerous Drugs”)

8.According to the police estimation, the street value of the Dangerous Drugs was around $8,877.

9.The Defendant possessed the Dangerous Drugs and for the purpose of unlawful trafficking.

Mitigation

10.The Defendant is 25 years of age.  He received up to F. 2 education.  He worked as a casual worker before arrest.  His monthly income was between $10,000 and $15,000.  Prior to that job, he had worked as a spider lift driver, earning between $20,000 and $25,000 per month.  Owing to an accident, he lost the job. He committed the present offence for want of money.  His plans with his girlfriend are no longer viable because of the present court proceedings and the consequence. 

11.He was sentenced to 5 years by the High Court for drug trafficking in 2015.  He was released in 2016, 1 year 6 months before the present offence.  His counsel accepts that this is an aggravating factor in his sentence. 

Sentencing considerations

12.There are sentencing guidelines for trafficking in ketamine laid down in HKSAR v Hii Siew Cheng [2007] 1 HKLRD 1.  For 10 – 50 grammes of ketamine, the sentence shall be 4 – 6 years.

13.There are sentencing guidelines for trafficking in Ice laid down in HKSAR v Tam Yi-chun [2014] 3 HKLRD 691.  For up to 10 grammes of Ice, the sentence shall be 3 – 7 years.  For 10 – 70 grammes of Ice, the sentence shall be 7 – 11 years.

14.The “Individual Approach” and the “Combined Approach” are different ways to adopt in sentencing cases of cocktail drugs.  The Individual Approach looks at each drug for a starting point and simply adds up the different sentences.  There may be cases where a different drug though not in great quantity can attract a separate starting point.  Adding up different starting points can lead to absurd result if the eventual sentence is longer than even the most serious drug singly in such total quantity.  The Combined Approach looks at the more potent and harmful drug for a starting point, to be adjusted by a proper assessment of the significance of the other lesser drug.  The Combined Approach is usually the correct and fair approach (HKSAR v. Yip Wai Yin [2004] 3 HKC 367). 

Sentencing the Defendant

15.I first consider the Individual Approach.  For 14.84 grammes of ketamine, the mathematical starting point shall be about 4 years 2 months.  For 4.33 grammes of Ice, the mathematical starting point shall be about 4 years 9 months. Adding them up will result in 8 years 11 months.  It is obviously excessive. 

16.I come to consider the Combined Approach.  If the entire quantity were to be ketamine, 19.17 grammes (i.e., 14.84 + 4.33) would suggest a mathematical starting point of about 4 years 3 months.   If the entire quantity were to be Ice, 19.17 grammes (i.e., 14.84 + 4.33) would suggest a mathematical starting point of about 7 years 7 months.  

17.I shall consider a starting point of between 4 years 3 months (if all being ketamine) and 7 years 7 months (if all being Ice), the bandwidth is 3 years 4 months.

18.The Ice here (4.33 grammes) is 22.5% of the entire quantity of both drugs (19.17 grammes), and a 22.5% adjustment to the band width of 3 years 4 months shall result in 9 months.

19.If the Combined Approach is to be adopted, the starting point shall be 4 years 2 months (for 14.84 grammes of ketamine) plus 9 months (for 4.33 grammes of Ice).  The starting point so reckoned shall be 4 years 11 months. 

20.I adopt the Combined Approach.  I round up the starting point to 4 years 9 months (i.e., 57 months). 

21.I shall add 6 months to this starting point to reflect the aggravating sentence for more deterrent effect due to his re-offending. 

22.The eventual starting point is 63 months.  

23.After a one-third discount for the plea of guilty, the sentence is 42 months.