HKSAR v. Cheung Kei Man

DCCC 777/2022

[2023] HKDC 769

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 777 OF 2022

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance Cap. 134. Under this circumstance, Prosecution is willing to leave Charge 2 on file, not to be proceeded with without the leave of the Court or the Court of Appeal.

Summary of Facts

2.The amended summary of facts admitted by the Defendant are as follows:

(1)  On 10 April 2022 at about 0108 hrs, police officers in uniform PC 19652 (PW1), PC 18772 and Sgt 50418 saw the defendant acting suspiciously. Suddenly, the Defendant turned and fled. The officers gave chase and intercepted the Defendant after a 15-meter chase. PW1 warned the Defendant not to struggle, otherwise he would be arrested for “obstructing police”. The Defendant ignored the warning, and continued to struggle. Plain clothes officers ASGT 14258 and PC 21420 who were patrolling in the vicinity, assisted in controlling the Defendant. Upon search, the following items were found in the Defendant’s left and right jeans pockets:

(i)  Exhibit 1: 9 plastic bags, containing a total of 3.38 g of a solid containing 2.86 g of ketamine;

(ii)  Exhibit 2: 5 paper packets, containing a total of 1.80 g of a solid containing 1.53 g of ketamine;

(iii)  Exhibit 3: 3 Plastic bags containing a total of 5 tablets and 0.14 g of tablet fragments containing 1.05 g of 3, 4-methylenedioxymethamphetamine.

Cautioned Statements

(2)  Under arrest and caution at scene, the Defendant admitted that he ran away because he was in possession of Ketamine and ecstasy-type tablets for self-consumption and was afraid of being arrested.

(3)  A video recorded interview was conducted with the Defendant subsequently. Under caution, he said the following:

(i)  he was a bus driver for Kowloon Motor Bus. His salary was $17,000.

(ii)  Due to the Pandemic, he was under stress because he earned less salary. He started to inhale Ketamine in 2022, one to 2 times a day.

(iii)  He admitted purchasing Exhibits 1-3 from an unknown male in Shek Kip Mei Park for about HK$ 3,200 in cash on 8 April 2022. He took the drugs home after purchase.

(iv)  On 10 April 2022, he was on his way to bring the drugs to another person at Nam Cheong Estate Park before he was intercepted by uniformed police.

(v)  The Defendant admitted to trafficking in dangerous drugs. This was his first time for monetary reward（水腳）but the amount had not yet been confirmed. He was afraid when he saw the police, so he fled.

(vi)  The Defendant did not have the telephone number of the person who requested the drugs. There was no caller ID when he called the Defendant. He did not know this person.

(vii)  The Defendant refused to provide the name of his friend, who instructed him to bring the dangerous drugs to the person in Nam Cheong Estate Park 1 to 2 days before the arrest.

(viii)  He agreed to the delivery arrangement because he did not have enough money to repay his bank loan.

The Defendant’s background

3.The Defendant is 51 years old, divorced and lived alone.  He was educated up to Form 4 level.  He has a clear record.

Sentence

4.In Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal laid down guidelines for trafficking in ketamine and ecstasy.  Where the narcotic content is between 1-10 grammes, the appropriate starting point is 2-4 years.

5.In the present case, there was 4.39 g of Ketamine and 1.05 g of ecstasy (i.e. a total of 5.44 g).  Under the guidelines, the starting point is 35 months’ imprisonment.

6.The Defendant pleaded guilty at the first opportunity and is entitled to a one-third discount.  There are no other mitigating factors apart from his guilty plea.  The sentence is reduced to 23 months.