HKSAR v. Cheung Chun Hung

DCCC 275/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 275 OF 2009

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Reasons for Sentence

Date : 1.10am on 23 December 2008 (Tues)

Place : “Cash Pub” at 26 – 36 Prat Avenue, Tsimshatsui, Kowloon.

Charge 1 : Trafficking in 0.56 gramme of ketamine, 5 tablets of ecstasy

Charge 2 : Trafficking in 5.97 grammes of ketamine, 20 tablets of ecstasy

Charge 3 : Trafficking in 15.55 grammes of ketamine, 35 tablets of ecstasy and 50 tablets of nimetazepam

1.This was an undercover police operation. A police officer was tasked to conduct a sample purchase. The plain-clothes officer arrived at the “Cash Pub” shortly after 1 am on the early morning of the day in question.

2.At the entrance of the pub D1 approached the agent and offered to sell him “K chai” and “Shake Head Pill”. D1 asked for HK$100 per packet of “K-chai” and HK$80 for each tablet of “Shake Head Pill”.

3.D1 instructed the officer to go to the private car KG 8555 parked nearby to collect his purchase. The officer saw D2 on the driver’s seat while D1 was on the front passenger seat. The officer boarded the vehicle and was given a bag by D1. The officer paid D1 HK$900 marked banknotes for his purchase.

4.When the officer got out of the car, D1 and D2 drove off. D1 and D2 were intercepted nearby on board of the vehicle KG-8555 by 2 other officers of the same operation police team. The HK$900 police marked money was found on D2. D1 was found to have a can in his pocket. Inside the can were 2 packets of ketamine and 20 tablets of ecstasy.

5.Back in the police station, police further searched the car and found 3 bags of ketamine, 35 tablets of ecstasy and 50 tablets of nimetazepam inside the front compartment of the car.

6.D2 was the registered owner of the vehicle. He admitted possessing the drugs in the car. He also told the police officers he sold the drugs to make money.

7.D1 told the police officers D2 instructed him to sell the drugs. He handed over all sale proceeds to D2 as soon as he received the money. He had no knowledge of the drugs found inside the glove compartment of the vehicle.

8.The drugs were subsequently examined by the government chemist. The contents were found to be :-

(a) the packets sold to the undercover agent by D1 contained:-

(i) 5 small packets of 1.4 grammes of powder which contained 0.56 gramme of ketamine; and

(ii) 5 tablets containing 0.017 gramme of methamphetamine, 0.35 gramme of 3-4 MDMA, 0.03 gramme of 3-4 MDA and 0.02 gramme of 4-bromo dimethoxyphenylethylaime (called DMPE for short).

(b) The drugs found in the can in D1’s pocket:-

(i) 2 packets of a powder containing 10.65 grammes of a powder which contained 5.97 grammes of ketamine; and

(ii) 20 tablets containing 0.08 gramme of methamphetamine, 1.44 grammes of 3-4 MDMA, 0.14 gramme of 3-4 MDA and 0.1 gramme of 4-bromo DMPE.

(c) The drugs found inside the glove compartment comprised of

(i) 21 packets of a powder of a total weight of 27.84 grammes containing 15.55 grammes of ketamine; and

(ii) 50 tablets containing 0.33 gramme of nimetazepam; and

(iii) 35 tablets containing a total of 0.13 gramme of methamphetamine, 2.47 grammes of 3-4 MDMA, 0.25 gramme of 3-4 MDA and 0.18 gramme of 4-bromo DMPE.

9.Sentence tariff for trafficking in Ketamine can be found in the current case of Hii Siew Cheng (許守城) [2009] 1 HKLRD 1(6 June 2008). The appropriate sentence for trafficking in 1 – 10 grammes is a term of 2 – 4 years imprisonment while the sentence for trafficking in 10 – 50 grammes of ketamine is a term of 4 to 6 years imprisonment.

10.A trafficker trafficking in small quantities of drugs should expect a term of about 2 years imprisonment as a starting point.

11.When a trafficker deals in more than 1 drug, the court would have a flexibility in adopting an individual approach, i.e. to attend to individual drugs and then make adjustment for the combined effect of the overall term; or the combined approach where the court decides upon the sentence for the most serious drug and make upward adjustments to account for the presence of other drugs [Cheung Yat Ming (鄭日明) CACC-455/06; Ho Chi Shing (何志成) CACC-216/08 and Chan Ho Wai (陳浩維) CACC-129/08].

12.In respect of the 1^st charge both defendants were trafficking in small quantities of ketamine (0.56 g) and 5 tablets of ecstasy to the undercover agent. The appropriate term is a sentence of 2 years imprisonment.

13.For the 2^nd charge D1 possessed 5.97 grammes of ketamine and 20 tablets containing 0.08 gramme of ice and 1.68 grammes of ecstasy for trafficking, the appropriate term should be 3 ½ years (3 years and 1 month for the possession of 5.97 grammes of ketamine for trafficking. Ecstasy and ketamine are treated as in the same category for the purpose of sentence. The quantity of ice is minute. Be it by way of the combined approach or the individual approach, the equitable upward adjustment in respect of the additional 20 tablets containing ice and ecstasy should be a term of 5 months).

14.For the 3^rd charge D2 possessed 15.55 grammes of ketamine, 35 tablets containing 0.13 gramme of ice and 2.9 grammes of ecstasy and 50 tablets of nimetazepam for trafficking, the suitable sentence is a term of 5 years imprisonment (4 years and 3 months for the possession of 15.55 grammes of ketamine for trafficking, the possession of 85 tablets coupled with the fact that D2 was the one in control of D1 in these events, an upward adjustment of 9 months is justified.)

15.D1 has a clear record and D2 has 1 previous record of possession of drug charges in July 2006. Both of them are relatively young, D1 was aged 20 whilst D2 was aged 25. Both defendants were born in the mainland. D1 came to Hong Kong in 1999 whilst D2 came in 1997. Neither of them adjusted well to the local education system and soon became school dropouts. Both fell into adverse influence and got into what they believed to be the lucrative trade of drug trafficking.

16.I accept counsel’s mitigation on behalf of D1 that there is no evidence to show his triad affiliation was related to the present drug trafficking activity and his previous drug activities is not the subject of a separate charge before me.

17.Young age and clear record are said time and again not to be good mitigating factors for serious offences such as dug trafficking. The strongest mitigating factor for the defendants is really their pleas of guilty indicating their remorse. I accord them the 1/3 discount for their remorse. For the present events, the total quantity of drug D1 trafficked in was 8.61 grammes of ketamine/ecstasy coupled and 0.017 gramme of ice; whilst the total quantity of drugs D2 trafficked in was 19.41 grammes of ketamine/ecstasy, 0.017 gramme of ice and 0.33 gramme of nimetazepam. Taking totality into consideration, the sentences I do impose are:-

D1: (i) for charge 1 there is a term of 16 months imprisonment (2/3 of 2 years); and

(ii) for charge 2 there is a term of 2 years and 4 months (2/3 of 3 ½ years); to be served concurrently with the 1^st charge.

D2: (i) for charge 1 there is a term of 16 months imprisonment; and

(ii) for charge 3 there is a term of 3 years and 4 months (2/3 of 5 years); to be served concurrently with charge 1.