HKSAR v. Chung Kwai Ming

DCCC279/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 279 OF 2010

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Reasons for Sentence

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1.Defendant has pleaded guilty to one count of trafficking in a dangerous drug, namely 47.54 grammes of a powder containing 37.26 grammes of ketamine.

2.The facts are unfortunately all too common. The defendant was found in the early hours of the morning, that is at 2.53 am on 17 December, inside a private car parked outside the Sau Mau Ping Shopping Centre in Kwun Tong. He was told by the police officer to alight from the car, and upon a search a resealable plastic bag with 17 resealable plastic bags containing suspected ketamine was found in his left front pocket of his jeans.

3.The defendant was arrested and cautioned. Under caution the defendant claimed that the ketamine was for his own consumption and begged for a chance. The drugs were subsequently found by the Government Chemist to be ketamine.

4.The defendant was also found with about $5,000 on his person at his arrest. In a video-recorded interview the defendant claimed that he had bought the ketamine on 16 December, at about 11.30 pm, from a person for HK$8,500, and he proposed to share the ketamine with his friends, he said. He claimed that he would retain most of the ketamine for his own consumption and sell some to his friends, and claimed that he consumed ketamine more than a year before his arrest. He said he was a part-time hotel worker, earning about HK$48 to HK$55 per hour.

5.The defendant is aged 28 and has a clear record. As Mr Tang correctly pointed out, his biggest and only mitigation, as far as I can see, is the fact that he has pleaded guilty. Mr Tang attempted to urge this court that the defendant is only a social trafficker and not a real drug trafficker, and that he was intending to retain most of the drugs for his own consumption. I pointed out to Mr Tang that I would not accept that he was retaining most of the drugs for his own consumption because he is only a part-time hotel worker, earning about $48 to $55 an hour and, as Mr Tang pointed out, he has tips. Altogether he earns about $10,000 per month. We must not forget that at the time of his arrest he had over $5,000 on him, and he also allegedly paid over $8,000 for the drugs the previous evening.

6.So I told Mr Tang that he is welcome to call evidence to support the mitigation that the defendant had most of the drugs for his own consumption because I am not convinced that the defendant, on his salary, could afford such a large amount of drugs for himself. Mr Tang declined the invitation to call evidence. Mr Tang submitted that the defendant was the sole breadwinner of his family and that he needed to give money to his family for their maintenance, so all the more it shows very clearly that the defendant could not have afforded to have most of these drugs for his own consumption.

7.The court is very concerned with drug trafficking, particularly now with trafficking in ketamine. Many young people are influenced in discos and nightclubs to consume this ketamine. So the Court of Appeal has very recently laid down guidelines for trafficking in ketamine in the case of Hii Siew Cheng, CACC7/2006. The guideline is that for trafficking in 10 to 50 grammes of ketamine would result or reasonably call for a sentence of between 4 to 6 years' imprisonment. Here the defendant has a total of 37.26 grammes of ketamine. That would call for a starting point of between 5 to 5½ years.

8.In considering the starting point I do take into account that this is the defendant’s first offence, and also that a small part of the ketamine may be for his own consumption. So I will lower the starting point and take the lesser of the starting point. So I will take 5 years as a starting point and reduce it by one-third because of his plea. So the defendant will go to prison for 40 months.