HKSAR v. Yu Cheuk Nam

HCCC 337/2019

[2020] HKCFI 423

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 337 OF 2019

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

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COURT:

The defendant, Yu Cheuk-nam, pleaded guilty to one count of trafficking in a dangerous drug before a magistrate, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was committed to the Court of First Instance of the High Court for sentence.

The Summary of Facts

On 3 December 2018, at around 3.30 pm, police officers laid ambush in the vicinity of a particular flat on the 2nd floor of Tower 7 of Metro City Phase 2 in Tseung Kwan O. And at around 5.10 pm, the defendant was seen opening the door of this particular premises using a bunch of keys he possessed. The defendant was intercepted for inquiry. Upon entering the premises, the police officers found a female and a five-month-old boy inside the bedroom of the premises.

A body search was conducted on the defendant and the following items were found on him: a total of HK$1,100, one mobile phone, a bunch of keys and a car key. A house search was conducted inside the premises with a search warrant. Police found a box inside a cabinet in the washroom. It contained packets of what later confirmed to be a total of 307.76 grammes of a solid containing 267.3 grammes of ketamine, together with empty resealable plastic bags, a spoon and a set of electronic scales.

The defendant was arrested and cautioned. Under caution, the defendant admitted that he had the dangerous drug inside the premises for sale as he needed money to raise his child. The estimated value of the ketamine was around HK$124,335. The defendant admitted that he had knowledge of all the dangerous drugs seized and was in possession of all the dangerous drugs seized for the purpose of trafficking at all material times.

Background

According to the antecedent statement, the defendant was born in 1983 and is now 36 years of age. He has a previous conviction of trafficking in a dangerous drug in 2006 which was a spent conviction. The defendant was educated up to Form 3 and was unemployed at the time of arrest. The defendant claimed to have started abusing ketamine since 2005, although according to the antecedents statement, his daily consumption was about 0.5 gramme, it was corrected to 1 gramme per day.

Mitigation

In mitigation, defendant’s counsel, Mr Adonis Cheung, submitted that although the defendant was addicted to ketamine at the time of the offence, the defendant confirmed, as indicated in the Admitted Facts, that the ketamine seized in this case was not for the defendant’s own consumption. The defendant worked as a car washer before but was unemployed at the time of the offence. He committed this offence due to financial pressure as he had to support his young son who is now 15 months old. Mr Cheung submitted that the only mitigation is the defendant’s plea of guilty.

The defendant, his father and his girlfriend all wrote to this Court. While appreciating that the defendant had to shoulder his responsibility for having committed this serious crime, they nevertheless asked for leniency. Mr Cheung also asked this Court not to enhance the starting point since the defendant’s previous conviction of trafficking in a dangerous drug was a spent one and he was sentenced to a DATC at the time.

Sentence

Trafficking in a dangerous drug is a serious offence and the offenders are seriously punished when caught. A person convicted on indictment is liable to a fine of $5 million and life imprisonment. In the case of Hii Siew Cheng, the Court of Appeal set down guidelines for the trafficking of ketamine. The quantity involved here is 267.3 grammes, which falls within the band of 50 to 300 grammes of ketamine with a starting point between 6 to 9 years.

Having considered the circumstances of this case, I am of the view that an appropriate starting point is one of 8 years and 7 months. And that equals to 103 months. Although the defendant is not a person with a clear record and that his previous conviction was trafficking in a dangerous drug, bearing in mind that he was sentenced to a DATC at the time and that the conviction was a spent one, I agree with Mr Cheung and I will not enhance this starting point of 8 years and 7 months.

The defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. With this one-third discount, the sentence would be one of 68.6 months. I will round this up to 5 years 8 months. In other words, I will just count 68 months and ignore the 0.6 months. So the actual sentence for the trafficking in a dangerous drug, the defendant is sentenced to 5 years and 8 months’ imprisonment.