HKSAR v. Chan Lit Fu

DCCC775/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 775 OF 2011

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Reasons for Sentence

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1.Defendant, you have been convicted upon your guilty plea of one charge of trafficking in a dangerous drug. In sentencing, I have taken into consideration the whole circumstances of the case, including its nature and facts, in particular, the nature and quantity of the dangerous drug involved, your background, mitigation put forward on your behalf and have had regard to the sentencing precedents.

2.The facts of the case may be summarised as follows.  On the morning of 24 May 2011, you were stopped by police officers when you were coming out from the building where you lived.  Upon search, the following items were found in the plastic bag you were carrying: eight transparent plastic bags containing a total of 95.39 grammes of a powder containing 60.19 grammes of ketamine; and two transparent plastic bags containing 166 empty transparent plastic bags.

3.Upon being arrested and cautioned, you claimed the K Chai was for your self-consumption.  No further illegal item was found at your home.

4.During a subsequent cautioned interview, you said that you had bought the ketamine two days ago at a price of $8,000.  At the time of arrest, you were bringing the dangerous drug to hide.  The estimated retail value of the dangerous drug was about $11,000.

5.I was told that you are now 28 years of age, still single.  You are living with your elderly mother as well as your younger brother and younger sister, both working.  You have received elementary secondary education and were a renovation worker by occupation, earning about $10,000 a month. 

6.You are not a first-time offender.  On five previous occasions you have been convicted, mostly for the offence of possession of dangerous drug.  The last conviction took place on 10 August 2010 for an offence of possession of dangerous drug.  You were sentenced to receive treatment in DATC.  I was informed you had been released conditionally but were detained again under a recall order as a result of the present offence.

7.Your counsel told me that it was your intention to retain about 30% of the dangerous drug for your own consumption although you were going to traffic in the rest.  For this purpose, I do not consider it necessary to hold an inquiry.  Your assertion defies common sense since you were in possession of all the dangerous drug when you were leaving the place where you lived.  That said, bearing in mind your previous convictions of the offence of possession of dangerous drug, I am prepared to accept that you intended to keep a relatively small proportion of the dangerous drug in your possession for the purpose of self‑consumption.  

8.In all the circumstances, I found that the primary purpose of your possession of the ketamine was trafficking, and most of the quantity in your possession must be for that purpose.  In any case, even if you intended to keep some proportion of the dangerous drug for your self-consumption, the latent risk factor must not be ignored and, in my judgment, the risk was very substantial in this case.

9.In this regard, I have considered cases such as HKSAR v Wong Suet Hau CACC366 of 2000 and HKSAR v Chong Chee-Meng CACC315 of 2008. 

10.According to the guideline in SJ v Hii Siew Cheng [2009] 1 HKLRD 1, the tariff for a conviction after trial of trafficking in 50 to 300 grammes of ketamine is 6 to 9 years’ imprisonment.

11.In all the circumstances, I do not consider there exist strong reasons not to follow the tariff suggested in that case. Ketamine has been shown to be a prevalent drug in Hong Kong.  The harm to individuals and the community as a whole is tremendous. 

12.I bear in mind what Silke VP said in R v Lau Tak Ming [1990] 2 HKLR 370 that within the suggested bands, factors which the court may take into account included the following: the profit which may reasonably be expected to be derived, the number of packets, the type of mixture containing the narcotic, the degree of involvement of the offender, his previous history of narcotic offences, and matters of mitigation.

13.Taking into account the assertion of the intention to keep some of the dangerous drug for self-consumption and my judgment of the matter, I reduce 6 months from the starting point I will otherwise impose.  This is the first time you are convicted of the offence of trafficking in a dangerous drug.  I adopt a starting point of 5 and a half years. Defendant, you pleaded guilty.  I was told that you are remorseful and would make a good endeavour to turn over a new leaf.  In all the circumstances, I will give you a one-third discount.  By reason of the matters aforesaid, I sentence you to 44 months’ imprisonment.