HKSAR v. Chung Pak Kei

DCCC 109/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 109 OF 2013

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs". The dangerous drugs involved are ketamine and cocaine.

Summary of Facts

2.Shortly past midnight on 29 November 2012, PC 34808 (PW1) and PC 34942 (PW2) saw the defendant purchasing a ferry ticket on the 3^rd Floor of Shun Tak Centre in Sheung Wan.  Later, they intercepted him when he was about to enter the departure gate to board a ferry to Macau.

3.PW1 searched the defendant and found a packet of ketamine (E1) in the right pocket of his jacket.  The defendant was arrested for "trafficking".  Under caution, he admitted that he had concealed some other drugs in his anus and that he intended to bring the "K Chai" to Macau for his own consumption. 

4.The defendant was sent to the hospital.  A condom containing 15 packets of cocaine (collectively E5) wrapped in a piece of tissue paper and a plastic bag was retrieved from the defendant's body cavity. He admitted under caution that E5 contained cocaine and that he intended to bring E5 to Macau in order to earn some money for living.

5.In his video-recorded interview, the defendant admitted that he is a ketamine addict, and therefore carried E1 with him for his own consumption in Macau.  He packed E5 at home and placed them in his body cavity.  He purchased a 1:00 am ferry ticket to Macau.  Upon arrival at Macau, he would sell the cocaine at HK$1,000 per packet to his customers in various casinos.

6.Upon examination, a government chemist confirmed that E1 is a plastic bag which contained 0.28 gramme of a solid containing 0.23 gramme of ketamine; and E5 is 15 plastic bags which contained a total of 3.57 grammes of a solid containing 2.83 grammes of cocaine.

Mitigation & Sentence

7.The defendant is now 25, single and resides with his family in a public housing unit.  He has 5 conviction records, 3 of which are "Possession of dangerous drugs".  The defendant quitted school at the age of 15 after completing F.2.  The defendant's natural mother died of cancer when he was 4.  In 2006, the defendant's step-mother was also diagnosed with cancer.  The family had to spend much money on medication.  The business of the defendant's father did not do well either.  Both his father and step-mother ended up working as security guards.

8.Defence lawyer Mr. TANG submitted that at the time of the offence, the defendant did not have enough work as a casual delivery worker and was in financial difficulty.  He therefore came up with the idea of selling cocaine in Macau in order to earn some quick money.  The defendant now realizes his wrongdoing and is remorseful.  He is determined to reform himself.  A bundle of mitigation letters was placed before me; their contents are duly noted.

9.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.

10.The ketamine contained in E1 is of a negligible quantity (only 0.23 gramme).  Judging the manner in which E1 was carried by the defendant vis-à-vis the manner in which E5 was carried, I believe it is possible that the defendant had intended to export E1 (by carrying it in his pocket) for self-consumption in Macau rather than re-selling it.  On this basis, I would not, for the purpose of sentencing, take into account of E1, because at the end of the day, the impact of E1 on the length of the sentence is also negligible. [1]

11.The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370).  For up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years' imprisonment. 

12.For the purpose of sentencing, I treat the defendant having trafficked in 2.83 grammes of cocaine only.  For that quantity, I adopt a starting point of 3 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 2 years.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence I pass is 2 years' imprisonment.