HKSAR v. Yuen Hop Cheong

DCCC107/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 107 OF 2009

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Before:   H H Judge Whaley

Date:     6 March 2009 at 9.52 am

Offence:  Trafficking in a dangerous drug (販運危險藥物)

Reasons for Sentence

1.The defendant has been convicted on his plea of one charge of trafficking in dangerous drugs, namely 12.37 grammes of a powder containing 10.24 grammes of ketamine, on 20 November last year in Mody Road, Tsim Sha Tsui.

2.The defendant was in a taxi in the early morning in question at about 1.20 am.  The taxi stopped about 10 metres away from a roadblock where police were conducting a snap check.  The defendant was seen alighting from the taxi, he was intercepted, searched and six plastic bags of ketamine which were contained in a single plastic bag were found in his trousers pocket.  The defendant was arrested and under caution he said that the drugs were for his own consumption.

3.He is 19 years old, he has one previous conviction dating from 21 November last year, when he was convicted for possession of a dangerous drug.  The sentencing in that matter was adjourned to 9 March this year.

4.It is widely known in Hong Kong that the courts take an extremely serious view of the offence of trafficking in dangerous drugs.  The Court of Appeal has suggested guidelines for sentencing in order to try and achieve a uniformity in the sentences imposed by different courts, and so that people like the defendant will know what sort of sentence they can expect to receive if they are caught.  The guidelines suggested by the Court of Appeal in Secretary for Justice v Hii Siew Cheng CAAR 7/2006 suggest that for a quantity of narcotic of between 10 and 50 grammes a sentence of 4 to 6 years’ imprisonment after trial would normally be appropriate. 

5.For the quantity of narcotic which the defendant was trafficking in in this case, being 10.24 grammes of ketamine, I adopt a starting point of 4 years’ imprisonment.  For his plea of guilty and co-operation with the authorities he is entitled to a one-third discount, which discounts the 4 year starting point to 32 months’ imprisonment. 

6.The defendant claimed under caution after his arrest that the drugs were for his own consumption and it is now an established principle that if the court accepts that all of the drugs or a portion of them were intended for self-consumption, that is a factor which may call for a reduction in the sentence which would otherwise be appropriate. 

7.I refer to the decision of the Court of Appeal in HKSAR v Wong Suet Hau and Anor [2002] 1 HKLRD 69, in which the court considered this matter in detail.  The court emphasized that because of the dangers of abuse of this avenue of mitigation - it is such an easy claim for a defendant to make - the sentencing court should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the defendant’s contention.

8.I have to say that in the mitigation as it was originally presented by Mr Ng this feature, namely the defendant’s claim that the drugs were for self-consumption received no real attention.  On the contrary, it was stated that the defendant wished to earn some quick money, and later again, that he had committed the offence because he wanted to ease the financial burden of his family.  However, since the claim had been made by the defendant after his arrest I felt it only fair to investigate this claim further, and it was then that the defendant stated through his counsel that in fact he was intending to consume the bulk of it himself.  He was intending to sell one or two packets out of the six, and the remainder was for his own consumption. 

9.I was not prepared to accept this statement at face value, and I made it clear that a Newton Inquiry would be necessary if the defendant persisted in this claim. 

10.The defendant chose to give evidence on this aspect only and it emerges that he not only made the claim that the drugs were for self-consumption after his arrest, but again in his caution statement to the police he said, “Ah Sir, give me a chance.  I use this ketamine for self-consumption only”, or words along those lines. 

11.The fact that the defendant had in his possession six separate bags of ketamine was, on the face of it, more consistent with their being in a form in which he intended to resell them, since he said in evidence that each packet contained approximately the amount which he would consume each time. 

12.The defendant admitted that he had boarded the taxi with the intention of going to a discotheque in order to sell one or two of the bags of ketamine there before going home.  I note that it would have been very easy for him to have sold all six bags at the discotheque.  They were in a form immediately ready for sale.  He could have sold them to six different people.  The defendant has stated that he had six separate bags in his possession because that was the form they were in when he purchased them earlier that same evening.

13.It should be noted also that the very night or early morning that he was arrested for the present offence, possession of this ketamine, the defendant knew well that later that same day he was due to appear in court to face an earlier charge of possession of dangerous drugs, of which he was later convicted on his own plea; so on that evening/early morning he was fully aware that he was going to attend court later that day, and that he was going to be convicted on his plea of possession of dangerous drugs.  He admitted in cross-examination that he realised he might be sentenced to a term of immediate custody for it.

14.It seems to me that those facts are very much more consistent with a desire on his part to make some quick money, as he put it initially through his counsel, to ease the financial burden of his family before he was convicted and sentenced later that day. 

15.However, I am not dismissing his claim completely.  I will accept for present purposes that he did intend to use some of it for his own consumption.  I have in mind particularly that he did say so under caution, both when he was arrested and later in his caution statement.

16.In all the circumstances, I proceed on the basis that the defendant did intend to use some of the ketamine - it seems to me less than half of the ketamine that he had in his possession - for his own consumption and that he intended to sell the bulk of the six packets that were in his possession to make easy money, some quick money, as he put it.

17.I have already discounted the starting point of 4 years to 32 months, and in all the circumstances as outlined above I shall discount that by a further 4 months, and impose a sentence of 28 months’ imprisonment.