HKSAR v. Leung Chun Pong

DCCC271/2011

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 271 OF 2011

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Reasons for Sentence

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1.The defendant is convicted upon his own plea of one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134, Laws of Hong Kong.

2.The facts admitted by the defendant reveal that on 11 January 2011 the police executed a search warrant in the premises particularised in the charge, where the defendant and another person were present.

3.Inside a jacket found in one of the bedrooms, the police found one plastic bag containing 22.87 grammes of a powder containing 10.75 grammes of ketamine. The police also found one electronic scale and one plastic bag containing 14 plastic bags. The police further found one folded paper containing 0.08 grammes of a powder containing ketamine on top of a computer desk.

4.Under caution the defendant admitted that these items belonged to him and that he intended to sell the drugs to others for feeding his drug addiction.

5.The defendant had one previous conviction. In May 2009 he was placed on probation for 18 months for the offence of possession of dangerous drugs.

6.The defendant is now 22 years old, single, living with his parents. He received up to Form 3 education and is now a stock assistant by occupation. A letter from his employer showed that he was earning a basic monthly salary of $9,500.

7.In mitigation, Mr Kwong, solicitor of the defendant, informed me that the defendant has been the sole or the main breadwinner of the family because his father, who is a bus maintenance worker, has only a few days of work because of his poor health. Mr Kwong informs me that the defendant’s father is suffering from a kidney problem and that he has to receive medical treatment from time to time.

8.The defendant’s mother has been unemployed for many years. The defendant has an elder sister, who has married and lives apart.

9.Mr Kwong informs me that the defendant has been contributing half of his income to support his family. Letters from the defendant’s father, elder sister and employer have been produced to show that the defendant has been a filial son and hardworking employee.

10.Mr Kwong pleads for leniency for the defendant. He also points out the part of the drugs, he said about 10 per cent, was for the defendant’s own use. On that basis he asked me to adopt a lower starting point.

11.The offence of trafficking in dangerous drugs is a very serious offence. Unless there are very special circumstances or exceptionally strong mitigating factors, the usual sentencing option is imprisonment.

12.Having considered what has been said on behalf of the defendant, I find that the only viable sentencing option in this case is imprisonment.

13.As to the quantum of sentence, the Court of Appeal has laid down clear sentencing tariffs. In Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal laid down the tariff that for trafficking in over 1 gramme to 10 grammes of ketamine, the proper starting point is 2 to 4 years’ imprisonment. If the quantity of ketamine is from 10 grammes to 50 grammes, the proper starting point should be 4 to 6 years’ imprisonment.

14.In the present case, the purity of ketamine in the drugs involved was 10.75 grammes. Even if some of the drugs were to be used by the defendant for his own consumption, I would have considered that even for that portion of drugs this court would still have to take into the account the latent risk that these drugs might fall into the hands of a third party to enhance the sentence, especially when such a risk was quite substantial because the defendant admitted under caution that he needed the money for his drug addiction. Furthermore, the quantity of ketamine in this case was more than 10 grammes.

15.Having balanced all the factors, I of the view that the proper starting point is 4 years’ imprisonment.

16.As to the mitigating factors, the defendant committed the offence because he had to feed his drug addiction. This is of course not a mitigation factor. I note his father’s illness, I note the defendant has been supporting his parents, I note all the good words that have been said for him from his father, elder sister and employer, but for an offence of this serious nature, the defendant’s personal circumstances can hardly be taken into account as mitigation.

17.In this case, the only mitigating factor is the defendant’s guilty plea. He is therefore entitled to the usual one-third discount. There is no other ground upon which I can reduce the sentence further.

18.The defendant is therefore sentenced to a term of imprisonment for 2 years and 8 months.