HKSAR v. Cheung Ting Fung

DCCC 1326/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1326 OF 2011

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to 2 charges of "Trafficking in a dangerous drug" and 1 charge of "Possession of dangerous drugs".

Summary of Facts

Charge 1

2.About 8:15 pm on 18 August 2011, the Police stopped the defendant at Wang Lok Street, Yuen Long near the front gate of Yeung Uk San Tsuen for investigation.  The defendant was found holding in his left hand a piece of tissue paper containing a small plastic bag which contained some white powder (later found to be 0.82 gramme of a powder containing 0.37 gramme of ketamine).  Under caution, the defendant admitted that the powder is ketamine and he intended to sell it to a friend at $100.

Charges 2 & 3

3.The defendant was taken to his home situated at Ground Floor, No.29 Yeung Uk San Tsuen.  His room was searched.  A box containing the following items were found in his room :-

(i) 11 plastic bags containing a total of 57.22 grammes of a powder containing 25.05 grammes of ketamine;

(ii) 3 plastic bags containing a total of 0.71 gramme of a solid containing 0.57 gramme of cocaine;

(iii) 1 plastic bag containing 2.79 grammes of cannabis in herbal form;

(iv) 1 plastic bag containing 0.23 gramme of a crystalline solid containing 0.23 gramme of methamphetamine hydrochloride;

(v) 1 electronic scale;

(vi) 1 piece of tin foil; and

(vii) 225 small resealable plastic bags.

5.Under caution, the defendant admitted that he bought all the ketamine found from someone named "Ah Fai" at $4,000.  The ketamine was partly for re-sale and partly for his self-consumption.  The defendant also admitted that he earned his living by selling ketamine to others.  The cocaine and cannabis were also purchased from "Ah Fai" and were for the defendant's consumption.  The piece of tin foil was for consuming cocaine.  The electronic scale and the empty plastic bags were respectively used for weighing and packing the ketamine which the defendant intended to sell.

Mitigation & Sentence

6.The defendant is now 28 years old.  He has 1 previous conviction in 2003, which is related to "simple possession".

7.Defence lawyer Mr. KONG informed me that the defendant's father deserted the family when the defendant was 2, and the defendant was brought up by his mother, who is now 60 and has retired.  The defendant's mother is suffering from a tumour, but the defendant does not know any more details.  The defendant has worked in various trades after leaving school.  He last worked as a waiter, but was fired 1 year prior to his arrest due to his drug addiction.  The defendant then resorted to selling drugs in order to earn some quick money.  Mr. KONG submitted that the defendant was cooperative with Police; he made full and frank admissions immediately after his arrest.

8.As revealed in the Summary of Facts, the defendant admitted under caution that he earned his living by selling ketamine to others.  He intended to weigh and package the drug at home and then sell it to others, which is the most typical drug trafficking fact pattern in Hong Kong or elsewhere.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment.

9.The sentencing tariff for trafficking in ketamine is laid down in  SJ v HII Siew Cheng [2009] 1 HKLRD 1.  For 10 to 50 grammes, the sentence ranges from 4 to 6 years' imprisonment.  In Charges 1 and 2, the defendant trafficked in a total of 25.42 grammes of ketamine.  I have not overlooked the defendant's claim for self-consumption of part of the drug seized.  The defendant's criminal record does suggest that he is a drug abuser.  He claims that he had to go through about 1 to 2 grammes of ketamine a day.  I will sentence him on the basis of trafficking in 20 grammes.

10.For Charge 1, it involves 0.37 grammes, I adopt a starting point of 18 months.  One-third discount is given for the guilty plea, reducing the sentence to 12 months.  For Charge 2, it involves 25.05 grammes, I adopt a starting point of 57 months.  One-third discount is given for the guilty plea, reducing the sentence to 38 months.  Other than the guilty pleas, I see no other mitigating factors which warrant any further discount. The sentence I pass for Charges 1 and 2 are 12 months and 38 months respectively.

11.For Charge 3, it involves possession of 0.57 gramme of cocaine, 0.23 gramme of ICE and 2.79 grammes of herbal cannabis.  I consider 18 months to be the appropriate starting point.  One-third discount is given for the guilty plea, reducing the sentence to 12 months.  The sentence I pass for Charge 3 is 12 months.

12.For the purpose of sentencing, the defendant trafficked in 20 grammes of ketamine.  Hence, the appropriate overall starting point is 4.5 years.  In other words, for Charges 1 and 2, an overall sentence of 36 months is appropriate after plea.  Regarding Charge 3, based on the nature of the drugs involved, it is clearly separate and distinct from Charges 1 and 2.  Having considered the totality principle, I take the view that the defendant should serve 6 months for this charge, yielding a total term of 42 months for all 3 charges.  To achieve this, I order the sentences of Charges 1 to 3 to run in the following manners :-

(i) Charges 1 and 2 concurrently; and

(ii) 4 months in Charge 3 consecutive to Charges 1 and 2.