HKSAR v. So Chi Fai

DCCC 1040/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1040 OF 2009

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Reasons for Sentence

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Charge and facts

1.The defendant pleads guilty to a charge of trafficking in dangerous drugs.  At 9:38 p.m. on 15 July 2009, the police entered Room 602, Yue On House, Yue Wan Estate, Chai Wan (“the Premises”) with a search warrant.  The Defendant, who was the tenant, was with 4 visitors there.  In his bedroom were found:

(1)  101 packets containing a total of 35.06 grammes of a powder containing 29.07 grammes of ketamine, 3 plastic bags containing traces of a powder containing ketamine, 22 plastic bags containing a total of 5.59 grammes of a crystalline solid containing 5.31 grammes of methamphetamine (“ice”);

(2)  packaging paraphernalia including 2 electronic scales, coloured papers, empty resealable plastic bags;

(3)  2 extendable batons.

2.The police cautioned and asked him who owned the things found.  He admitted that:

(1)    The drugs and the electronic scales belonged to him;

(2)    He had bought the drugs in Shenzhen for resale to make profit.

3.On the following day, under caution he admitted that:

(1)  The ketamine, ice, 2 electronic scales, coloured papers and empty resealable plastic bags belonged to him;

(2)  He bought the drugs from a friend in Shenzhen and brought them to Hong Kong for selling as well as for self-consumption;

(3)  The electronic scales were for weighing the drugs;

(4)  The coloured papers were for packaging the ketamine into 0.4 gramme per packet to be sold at $100;

(5)  He would pack the ice into 0.5 gramme per packet to be sold at $300;

(6)  The remaining drugs would be for his own consumption;

(7)  He would only sell the drugs to his friends;

(8)  He bought the drugs in Shenzhen for resale in Hong Kong to supplement his living expenses as he had been unemployed for a long time with inadequate public assistance money;

(9)  The 2 extendable batons were bought in Shenzhen at RMB￥200 for self-defence in case people of the same trade would go to his house and assault him.

Mitigation put forward

4.The defendant is now 44 years of age, single.  He has a number of drug-related and other convictions.  He has 2 similar convictions for trafficking in 2000.  He has received education up to P6.  He lives on public assistance.  The majority of the drugs were for selling to others.  He intended to keep 1 g each of ketamine and ice for own consumption.   

Sentencing principles

5.According to Cross & Cheung’s Sentencing in Hong Kong, 2007, 5^th ed., p. 598 – p. 599 on sentencing a trafficker of cocktail drugs:

Customary sentence: There is the ‘individual’ approach and the ‘combined’ approach.  The individual approach is to look at each component of the cocktail or batch and then sentence by adding up the different sentences relevant to each individual drug. The combined approach involves the calculation of the applicable sentence for the more or most serious drug, in terms of potency, then to take into account significant quantities of other (less serious) drugs.  Whichever approach is appropriate depends on the circumstances of the case, though the combined approach will often be the correct one to enable the judge to sentence fairly, realistically and in a commonsense manner.

HKSAR v Yip Wai Yin CACC 80/2003 is the general authority for the combined approach. 

6.The Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 has laid down sentencing guidelines for ketamine trafficking 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.        

7.If the individual approach is adopted, the total weight of ketamine in our present case, 29.07 grammes, shall fall within the range of 4 to 6 years. 

8.In Attorney General v Ching Kwok-hung [1991] 2 HKLR 125, the Court of Appeal laid down the guidelines for ice trafficking as follows:

(1)        up to ‘12’ grammes - 3 to 7 years' imprisonment

(Note: ‘12’ grammes is regarded as a typo and corrected as ‘10’ grammes in HKSAR v Capitania Cr App 28/2004);

(2)        between 10 and 70 grammes - 7 to 10 years;

(3)        between 70 and 300 grammes - 10 to 14 years;

(4)        between 300 and 600 grammes - 14 to 18 years;

(5)        over 600 grammes - 18 years  upwards.

9.If the individual approach is adopted, the total weight of ice in our present case, 5.31 grammes, shall attract a sentence of up to 3 years. 

Sentence I pass

10.The Defendant was the owner, importer, packager and seller of the drugs.  The quantity of ketamine was predominant in the present case.  It alone calls for 5 ½ years’ imprisonment.  Ice occupies a considerable though lesser part.   I adopt the combined approach and take 6 ½ years as the starting point.  I reduce it by one-third because of his plea of guilty.  The sentence is 4 years and 4 months.