HKSAR v. Chu Ling Fung

DCCC1153/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1153 OF 2010

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Reasons for Sentence

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1.The Defendant is convicted upon his own plea of 1 charge of Trafficking in a Dangerous Drug, contrary to section 4(1) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2.The Particulars of Offence are:

“CHU Ling-fung, on the 3^rd day of September, 2010, outside The Excelsior, No.281 Gloucester Road, Wanchai, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 81.78 grammes of a powder containing 63.34 grammes of ketamine.”

3.The facts admitted by the Defendant reveal that:

(i) he was intercepted by the police at 6:50 pm on 3 September 2010 at No.281 Gloucester Road whereupon:

(a) 4 plastic bags of white powder wrapped by a piece of tissue paper (E1) were found inside the Defendant’s underpants; and

(b) two re-sealable plastic bags containing white powder were found, one in each of the Defendant’s sock (E2 and E3);

(ii) under arrest and caution, the Defendant claimed that the ketamine was for his own consumption by way of snorting;

(iii) Government Chemist found that:

(a) E1 contained 54.76 grammes of a powder containing 42.51 grammes of ketamine;

(b) E2 contained 13.56 grammes of a powder containing 10.50 grammes of ketamine; and

(c) E3 contained 13.46 grammes of a powder containing 10.33 grammes of ketamine;

(iv) at all material times, the Defendant possessed E1, E2 and E3 for the purpose of trafficking.

4.The Defendant has 3 previous convictions. The last conviction is Possession of dangerous drugs of which he was sentenced on 25 March 2009 for detention in a DATC.

5.The Defendant was born in Hong Kong in March 1986 and is now 24 years old. He received education up to Form 4 level. He had been working as a cook and transportation worker.

6.In mitigation, it was submitted that prior to the Defendant’s arrest on 3 September 2010, the Defendant was employed for odd job as a transportation worker and was paid on a daily basis. It was also submitted that the Defendant was a drug addict although he was last released from Hei Ling Chau DATC in early August 2010. A letter dated 26 November 2010 from Father John Wotterspoon was submitted to this Court saying that Father Wotterspoon was willing to help rehabilitating the Defendant.

7.Initially, upon the Defendant’s instructions it was submitted that the ketamine was for the Defendant’s own consumption. In light of HKSAR v Wong Suet Hau and another CACC 366 and 487/2000, I made enquiry as to the quantity of the subject ketamine said to be for the Defendant’s own consumption. The hearing was adjourned for a while to enable Mr. Chu to take instructions from the Defendant. When the hearing was resumed, Mr. Chu on behalf of the Defendant sensibly submitted that the defence would not put forward the argument of self-consumption. I therefore approach sentence on such basis.

8.The sentencing tariff for trafficking in ketamine has been set out in Secretary for Justice v Hii Siew Cheng CAAR 7/2006 and CACC 126/2007. For trafficking in ketamine between 50 to 300 grammes, the starting point after trial is 6 to 9 years’ imprisonment. Despite Father Wotterspoon’s willingness to help rehabilitating the Defendant, in light of the sentencing tariff immediate custodial sentence is inevitable.

9.In the present case, the total quantity of ketamine is 63.34 grammes. I will adopt a starting of 6 years’ imprisonment. I will give 1/3 discount to reflect the Defendant’s guilty plea. There being no other valid mitigating factors, the Defendant is sentenced to 4 years’ imprisonment.