Read the full judgment text of CACC 68/2010 on BabelCite. This Court of Appeal judgment was delivered on 15 July 2010 before Hartmann JA, Lunn J.
Criminal law – dangerous drugs – trafficking – importation of ketamine for personal consumption – Dangerous Drugs Ordinance (Cap 134) s.2 and s.4(1)(a) and (3) – whether importation of a dangerous drug solely for personal use constitutes the offence of trafficking – held, yes, importing is a distinct and more serious offence than mere possession (R v Brian Meah and Philip John Marlow (1991) 92 Cr App R 254) – personal consumption nonetheless a strong mitigating factor (R v Chan Mung Lung [1992] 2 HKCLR 127) – sentencing – failure of judge to take mitigation into account or to make a finding on disputed personal-use contention – duty of judge to indicate rejection and give opportunity to call evidence – duty to sentence on factual version most favourable to applicant in absence of specific finding – applicant found with 28.45 grammes of powder containing 22.15 grammes of ketamine hidden in shoe on entry from Mainland – applicant pleaded guilty and claimed drug solely for own consumption as a heavy addict – two prior possession convictions – judge took starting point of 4 years 6 months, reduced by one-third for guilty plea, to 3 years – judge did not address personal-use mitigation – Court of Appeal allowed leave to appeal and reduced sentence to 2 years 3 months' imprisonment to reflect the strong mitigating factor while preserving the legislative intent that importation is a trafficking offence of greater culpability than simple possession.
Legal issues: Failure to consider personal consumption as mitigating factor in drug importation sentence
Outcome: Leave to appeal allowed; sentence reduced from three years' imprisonment to two years and three months' imprisonment.
Cited by 10 cases