HKSAR v. Yeung Chi Ho

DCCC 1054/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1054 OF 2009

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Reasons for Sentence

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Charges and facts

1.The defendant pleads guilty to 2 charges of trafficking in a dangerous drug, namely 11.68 grammes of ketamine (the 1^st Charge) and 110.43 grammes of ketamine and 244 tablets and 19 tablet fragments containing a total of 2.08 grammes of nimetazepam (the 2^nd Charge).

2.In the evening on 27 July 2009, the Defendant left Room 1516, Tsui Wo House, Tai Wo Estate, Tai Po, New Territories (“the Flat”). The police intercepted him for a search. Inside his right front trouser pocket was found a plastic bag of the ketamine as particularized in the 1^st Charge. After arrest and caution he said he was trying to sell the drug to someone to earn money (1^st Charge).

3.With the keys found on him, the police gained entry into the Flat. There were his grandparents and a cousin. Inside a wardrobe in his bedroom was a box containing a plastic bag of drugs and 25 foil packets of “Erimin 5” tablets as particularized in the 2^nd Charge, an electronic scale, 50 resealable plastic bags, and a plastic spoon. After arrest and caution he said all the drugs and paraphernalia belonged to him and had nothing to do with his family members.

Mitigation put forward

4.He is 20 years old. He is educated up to F. 5 level. His father has abandoned the family before his birth. His mother has to work and live in Mainland China most of the time. Since a little boy, he has received little parental guidance. He lives with his maternal grandparents and a cousin. He takes the former to see the doctors for their illnesses from time to time. He has 2 previous dissimilar convictions which are relatively minor compared with the present case. He is the sole breadwinner of the family. He committed the present offences to earn money. I have read the mitigating letters written by his mother and himself.

Sentencing principles

Sentencing guidelines for trafficking in ketamine

5.The Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 had laid down sentencing guidelines for trafficking in ketamine as follows:

(1)  up to 1 gramme – within the sentencer’s discretion;

(2)  over 1 gramme to 10 grammes – 2 to 4 years’ imprisonment;

(3)  10 to 50 grammes – 4 to 6 years;

(4)  50 to 300 grammes – 6 to 9 years;

(5)  300 to 600 grammes – 9 to 12 years;

(6)  600 to 1000 grammes – 12 to 14 years;

(7)  over 1000 grammes – 14 years upwards.

Sentence for different charges for drugs found in different places

6.The usual practice had been summarized in HKSAR v Lam Chi Wa CACC 94/2008 by Saw J, who delivered the judgment of the Court of Appeal as follows:

It has long been accepted that it is appropriate where two or more counts of drug trafficking are charged and the offences occur on the same day and at the same time (as they did here), where the reason for there being two or more charges as opposed to one is primarily that the drugs are located in different places (as they were here), for the sentencer to add the total of the active ingredient of the drugs together to arrive at a notional starting point.

Sentence for trafficking in nimetazepam

7.There is no tariff sentence. In HKSAR v Kao Chien Huo CACC 419/2007, the applicant was a Taiwanese national departing Hong Kong by air for Indonesia. He pleaded guilty to a charge of trafficking in 200 tablets containing a total of 1.71 grammes of nimetazepam by exporting. The Court of Appeal dismissed his appeal against a sentence of 16 months.

Sentence for cocktail drugs

8.In HKSAR v Cheung Kwok Leung CACC 539/2002, Beeson J, who delivered the judgment of the Court of Appeal, outlined the proper approach as follows:

36.  The judge was correct in basing his sentence on the narcotic quantity of the most serious drug in the group of dangerous drugs, which was the Ice. However he should have sentenced on the total narcotic quantity for both charges.

37.  We have considered the submissions that drug sentencing should be based on the weightiest constituent of any mixture. On the basis of current sentencing authorities such an approach is incorrect and could lead to absurd sentencing results. Requiring the sentencer to take the weightiest narcotic component and adjust the final sentence to take into account significant, but less weighty quantities, of more serious dangerous drugs making up the cocktail, would render nugatory the current sentencing guidelines. We reject this submission.

38.  We acknowledge however that it can be a difficult and complex task to sentence offenders who traffick in, or possess quantities of, a number of different drugs. In a case such as the present one the starting point should be based on the total narcotic content of the most serious drug, or drugs where the tariff guidelines are co-equal.

39.  The sentencer should examine the nature and quantity of other dangerous drugs in the combination and, where warranted, make an upward adjustment of, say, 4-18 months from the starting point. Whether any such adjustment is warranted will depend on whether other narcotic quantities are sizeable, whether the other drugs come within the same, or lesser tariffs, or whether any adjustment would be pointless, given the starting point adopted or the relevant range of sentence.

40.  Where other drugs are in the group, but the quantities are very small, or where their addition to, or inclusion with, other items would not make any difference to the total sentence, the sentencer can, properly, ignore them when computing sentence.

9.Such approach has been widely adopted in subsequent cases (e.g., HKSAR v Yip Wai Yin & Another CACC 80/2003, HKSAR v Cheung Kwok Fai CACC 157/2008).

Sentencing present Defendant

10.The Defendant intended to sell the drugs to make money. I adopt the combined approach in Cheung Kwok Leung since ketamine was the main drug in the 2^nd Charge. Besides, based on Lam Chi Wa, drugs found in different places in the same instance shall be considered together as a single bulk. There were 122.11 grammes of ketamine in total, quite apart from 2.08 grammes of nimetazepam. I take a notional starting point of 7 years for each charge. Given his plea of guilty, I reduce it to 4 years 8 months (i.e., 56 months). The sentences are to be concurrent.