HKSAR v. Chang Iat Fong

DCCC 63/2020

[2020] HKDC 707

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 63 OF 2020

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is ketamine.

Summary of Facts

2.About 9:40 p.m. on 3 October 2019, a customs officer intercepted the defendant at the Customs Departure Hall of Hong Kong Macau Ferry Terminal for customs clearance.

3.Ionscan of the defendant's personal belongings showed ketamine positive.  Upon search, a plastic bag wrapped in a piece of tissue paper was found in his right front trouser pocket.  The plastic bag contained 13.3 grammes of a solid containing 9.34 grammes of ketamine (P1).

4.Under caution, the defendant admitted that P1 was "K" (meaning ketamine), and that it was for his own consumption.  He bought P1 from an unknown person in Sheung Wan.

5.The defendant now admits that he trafficked the ketamine contained in P1 by way of exporting.

Mitigation & Sentence

6.The defendant is 35 and has a clear record.  He is a constable in the Macau Police Force earning $30,000 to $35,000 per month.  Defence counsel Mr. Lau informed me that the defendant is educated up to tertiary level.  He is married with 2 children (aged 8 and 6).

7.In mitigation, Mr. Lau submitted that P1 was entirely for the defendant's consumption.  He pleaded guilty to charge solely on the basis of exporting (which constituted "trafficking" at law).  It is not in dispute that the defendant was leaving Hong Kong when he was stopped and searched.

8.Prosecuting counsel Mr. Chain objected to Mr. Lau's mitigation on self-consumption.  He indicated that the prosecution accepts partial self-consumption only.  Mr. Chain relied on the defendant's movement record from 6 July to 3 October 2019.  During that 3-month period, the defendant came to Hong Kong on 11 occasions (including the day of his arrest), all of which were same-day visits.  Out of those 11 visits, 9 were under 15 minutes (ranged from 6 to 14 minutes); whereas the remaining 2 visits lasted 26 and 31 minutes respectively.  Mr. Chain argued that the defendant's peculiar travelling pattern is indicative of exporting drugs out of Hong Kong.  Mr. Chain also questioned the defendant's financial ability to buy drugs so frequently for self-consumption.

9.In reply, Mr. Lau submitted that the defendant had only 1 packet of ketamine with him.  Both the packaging and quantity of P1 tend to show that it was more likely than not for the defendant's self-consumption.  Mr. Lau also submitted that the standard urine test conducted by the Correctional Services Department on inmates does not cover ketamine[1]. Hence, there is no proof of the defendant being a ketamine user.  Mr. Lau suggested to hold a Newton Inquiry to resolve the issue.  He called the defendant to the witness box.

10.The defendant gave evidence that he is an immigration police constable posted at the ferry pier.  He admitted that he is a ketamine user; he bought P1 for self-consumption.  On the day of his arrest, he came to Hong Kong to buy drugs.  He claimed that P1 could last him for about 1 month (i.e. 30 to 40 doses).  He could recall coming to Hong Kong to buy drugs on 6 July, 4 and 31 August (roughly once a month).  He explained that not each of his visit was to buy drugs.  His younger sister works in a casino in Macau and she has customers from the mainland.  They would request her to purchase handbags for them.  Thus, on all other occasions, he came to   Hong Kong to collect handbags from his sister's business partner. 

11.I agree with Mr. Lau that the packaging and quantity of P1 tend to show that it was more likely than not for the defendant's self-consumption.  The defendant's frequent but brief visits to Hong Kong seem peculiar, but such a travelling pattern does not mean drug trafficking.  There is simply no evidence to prove the purpose of his previous 10 visits or to rebut his evidence given in the witness box.  Although there is no urine test report, there is a medical report showing that the defendant was diagnosed with anxiety disorder in March and August 2019 (which might be a reason for or a result of his ketamine abuse).

12.On a balance of probabilities, I have no reason to reject the defendant's claim that P1 was entirely intended for his own consumption.

13.A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders. 

The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see SJ v HII Siew Cheng [2009] 1 HKLRD 1). For up to 10 grammes, the sentence ranges from 2 to 4 years' imprisonment.

14.In the present case, the defendant trafficked in 9.34 grammes.  Applying a strict arithmetical approach, the appropriate starting point is 3 years and 10 months.  I consider a starting point of 45 months' imprisonment to be appropriate and just.  With the timely guilty plea, the sentence is reduced to 30 months.  I have borne in mind the comments made by the Court of Appeal in SJ v CHAN Chun-fai [2011] 3 HKLRD 116 and HKSAR v MAK Wai-ming [2012] 2 HKLRD 418 on the sentencing of exporting/importing drugs for self-consumption.  I will grant the defendant a further discount of 6 months.  I sentence him to 24 months' imprisonment.