HKSAR v. Chung Ka Yam

DCCC 307/2022

[2023] HKDC 870

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 307 OF 2022

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REASONS FOR SENTENCE

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1.The defendant is convicted on his own plea to a charge of trafficking in a dangerous drug, contrary section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

Facts

2.At about 10 pm on 1 September 2021, a police officer (“PW1”)  on patrol spotted a private car bearing registration number NY8208 (the “Vehicle”)  travelling along Kwai Yi Road.   PW1 directed it to stop near the lamppost number DC1349.  The defendant, then driver and the only person on board of the Vehicle acted nervously. 

3.Suspecting that the defendant was in possession of dangerous drug, PW1 conducted a search and found the following items:- 

(1)  Inside the defendant’s right trouser pocket, HK$140 in cash;

(2)  In the lower storage tray on the driver’s side front door of the Vehicle:-

(a)  a brown paper bag containing 55 resealable plastic bags containing a total of 23.8 grammes of a solid containing 18.2 grammes of ketamine;

(b)  a plastic bag containing cash of HK$15,530;

(3)  In the upper storage tray on the driver’s side front door of the Vehicle:-

(a)  2 resealable plastic bags, wrapped in a piece of tissue paper containing a total of 0.87 grammes of a solid containing 0.69 grammes of ketamine;

(b)  a wallet belongs to the defendant;

(4)  2 mobile phones, one next to the steering wheel and the other in the storage compartment between the front row seats.

4.The narcotic content of the drugs was confirmed by government chemists.

5.On 1 September 2021, the defendant was arrested for trafficking in a dangerous drug.  Under caution, he claimed that he did not know to whom the drugs belonged to.  Oral fluid test for the drugs was conducted on the defendant and the result was negative. 

6.The dangerous drugs in his possession could have been sold at street value for HK$13,593. 

7.At the material time, the defendant possessed all the dangerous drugs found on the Vehicle for the purpose of unlawful trafficking. 

Criminal Record

8.The defendant has 6 previous records involving conviction of 7 charges, 4 of which is possession of dangerous drug. 

Mitigation

9.The defendant is now aged 37.  He was born in mainland China and moved to Hong Kong in the year 1998.  Prior to his arrest, he was living with his retired parents in Hung Hom.  The defendant has received education up to Form 2 level.  He previously worked as a recycling worker earning about HK$13,000 per month. 

10.Defence counsel conceded that following the sentencing guideline in the case of SJ v Hii Siew Cheng [2009] 1 HKLRD 1, the sentencing starting point in the present case warrants a starting point of 4 years and 5 months’ imprisonment. 

11.Defence counsel submitted that by reason of the defendant’s guilty plea, he should be entitled to the full one-third sentencing discount. 

12.It was also submitted that at the time of offence, the defendant was in need of money to support his family and he was therefore asked to transport the drugs in question for a reward of HK$3,000.  As he failed to succeed in his errand, he did not receive any payment. 

13.Defence counsel also conceded that the commission of the offence by reason of financial difficulty is not a valid mitigating factor and he asked this court to consider his case with sympathy. 

Discussion

14.Before sentencing, this court has carefully considered all that was submitted on behalf of the defendant. 

15.Trafficking in a dangerous drug is a very serious offence and upon conviction on indictment, a person is liable to a fine of HK$5 million and life imprisonment.  Personal background is seldom a valid mitigating factor. 

16.As conceded by defence counsel, following the sentencing guideline in the case of Hii Siew Cheng, the sentencing starting point for trafficking 18.89 grammes of ketamine is 53.33 months’ imprisonment.

17.Urine test do not support the defendant as a ketamine user and it is also submitted that the defendant is not, at the time of the offence, a drug user.  Therefore, the only necessary inference would be that all drugs seized are for the purpose of trafficking. 

18.Committing the offence in order to earn fast money is, in whatever circumstances, not a valid mitigating factor.  The defendant has pleaded guilty and is therefore entitled to a full one-third sentencing discount which is the most valid and the only valid mitigating factor in this case. 

19.The defendant is therefore sentenced to 35 months and 16 days’ imprisonment for the offence.