HKSAR v. Chung Wing Choi

DCCC 152/2020

[2020] HKDC 595

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 152 OF 2020

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REASONS FOR SENTENCE

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1.The defendant, a 21-year-old young man, was caught smuggling drugs out of Hong Kong when he tried to board a ferry to leave for Macau at the Hong Kong Macau Ferry terminal, Sheung Wan.

2.He pleaded guilty before me to one count of drug trafficking; the drugs involved are 13.8 g of powder containing 11.9 g of Ketamine.

3.In the afternoon on 11 November 2019, customs officers stopped at the defendant at the departure hall of the Hong Kong Macau Ferry terminal for customs clearance and found a bag of drugs hidden in his underpants. The drugs were later examined to be 13.8 g of powder containing 11.9 g of Ketamine with an estimated street value of about $7,600.

4.Customs officers also found on him cash of HK $673 and MOP $62, a mobile phone and a single ferry ticket from Hong Kong to Macau. He was arrested for drug trafficking, and under caution, he told the officers that the drugs were for his own consumption.

5.The defendant is single and lives with his parents and two brothers. He has one prior conviction dissimilar to the present one - a theft back in 2015 for which he was put on probation for 12 months.

6.In mitigation, the court heard that he did not do well academically - he dropped out of school in Form two, but still managed to obtain a diploma in business from Vocational Training Council three years later.

7.His family are not reasonably off, both parents worked as cleaners with meagre incomes and the defendant had to supplement the family income by doing part time jobs whilst at school. At the time of the offence, he was a warehouse worker on a temporary basis earning around $15,000 a month.

8.Regarding his drug habit, the court was told that in 2017, the defendant had abused drugs for a few months due to the influence of bad peers but managed to quit it thereafter. However, his happy days did not last long, in mid-2019, he reunited with a childhood friend who introduced him to drugs again. This time he would abuse Ketamine about 2 to 3 times a week.

9.Worse still, this friend of his asked to meet him in Macau telling him to bring along Ketamine so as to share among friends and gave him instructions where to buy the drugs. He believed some of the drugs would be sold to friends at a profit.

10.There are sentencing guidelines for this type of offence- trafficking between 10 to 50 g of Ketamine would normally attract a term of 4 to 6 years. Given the amount of drugs (11.9 g) he admitted to trafficking, I would take 4 years and 1 month as the starting point.

11.On the question of part-consumption, although the defendant did tell the customer officers at the time of arrest that the drugs were for his own consumption, he did not insist on this today. The current authorities suggest that only a significant proportion of drugs for personal use is established, would the court allow a further reduction in sentence.

12.Smuggling drugs out of the jurisdiction aggravates the matter which would justify an enhancement of the sentence. According to the case of Yeung Lok Hei CACC 375/2017, an enhancement of up to 6 months is warranted for cases involving trafficking ketamine up to 500 g across the border of Hong Kong.

13.Counsel for the defendant, Mr Lam, submitted that the subject Ketamine (11.9 g) falls far below 500 g and given the likelihood of the 21-year-old defendant receiving a lengthy sentence in any event, a further enhancement for international factor might not be necessary.

14.First of all, drug trafficking is one of the heinous crimes, the courts have always been tough on such offences, any enhancement for whatever reason must be for deterrence.

15.It is true to say 11.9 g only constitutes a small proportion of 500 g (2.38%), but when it comes to deterrence, proportionality must give way to the need for meaningful deterrence.

16.In dealing with enhancement of two months in respect of a Form 8 recognizance offender, who admitted to trafficking drugs for a number of times one of which warranted a three-month starting point, the Court of Appeal in Butt Muhammad Gulzar CACC 205/2019 has this to say:

“In respect of charge 1 we do not agree that an enhancement of 2 months is disproportionate to a starting point sentence of 3 months’ imprisonment. With such a short sentence, proportionality must give way to the need for meaningful deterrence. The primary goal of the enhancement for the Form 8 status is denunciation and deterrence through severe punishment. If this at times results in disproportion between the amount of enhancement and the head sentence to which it is added, then so be it. Courts cannot allow the importance of the message being sent by the sentences they impose to be undermined or diluted by arguments based on percentages or disproportion.”

17.For the reasons given above, I would add 2 months for the international factor and that would bring the starting point up to 4 years and 3 months.

18.Insofar as mitigation is concerned, apart from his guilty plea, there isn’t anything of substance.  His plea is timely so he is entitled to a full one third discount, which would reduce the term to 34 months.

19.There being no reasons for further reduction in sentence, the defendant is therefore sentenced to 34 months’ imprisonment.