HKSAR v. Kui Cheuk Ming

DCCC 392/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 392 OF 2013

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. You admitted that on 9 January 2013 at your flat in Shanghai Street, Mong Kok, you unlawfully trafficked in 0.13 kilogrammes of a powder containing 0.10 kilogrammes of ketamine.

2.On the day in question, the police officers had mounted an anti-narcotics operation at your building.  They entered into your premises under a search warrant.  At the time, you were sitting on the lower bunk bed in the room and the police found the drugs stated in the charge in a tissue box on the bunk bed next to you.  Also found was an electronic scale, cash of $5,000 and three different sizes of resealable transparent plastic bags amounting to a total of 144 plastic bags.  Six mobile phones were also seized from the room. 

3.You were arrested for trafficking in a dangerous drug and under caution you alleged that the “K chai” was for your own consumption.  The street value of the dangerous drugs was $15,730. 

4.The prosecution has agreed that 20 per cent of the drugs was for your own consumption.  That would add up to a total of 20 grammes.   Therefore, 80 grammes were for trafficking and 20 grammes were for your own consumption. 

5.You are 24 years of age and have 10 previous convictions.  One is similar which is trafficking in dangerous drugs to which you were sentenced to Training Centre in January of 2004.  You have one previous conviction of possession of a dangerous drug to which you were sentenced to Detention Centre in 2003.  Since 2004, you have served various sentences of imprisonment until your last sentence in 2008 of which you were last released from prison on 18 November 2010.

6.I have taken into account the detailed mitigation advanced on your behalf by your solicitor, Ms Catherine Yu.  I have also had regard to the contents of your letter that you have written to me.  I am told by Ms Yu that from a young age of 11, your father had kicked you out of your home and since then you had contact with your mother.  However you had already started to mingle with undesirable peers and therefore you committed the various offences.  However, last year in July, your mother passed away and you wanted to fulfil her last wish of sending her ashes back to her hometown in Thailand.  As the cost of that was high at $30,000, you then resorted to committing this offence.  At that time you had been a minibus stationmaster at the material time earning $9,000 a month.

7.Ms Yu tells me that you have been a ketamine addict now for over 10 years and you have some health problems as a result. She asked this court to give you credit for your plea of guilty and she has also referred me to a Court of Appeal case, CACC135/2011, HKSAR v Chow Chun Sang, particularly that paragraph 19 of which the court sets out discounts when defendants like yourself plead to a charge of trafficking of which some of the drugs are also for the defendant’s own use.  I have taken into account all those matters and the matters stated in that case.

8.Ms Yu has also properly referred me to the tariff case of Hii Siew Cheng on trafficking in the dangerous drug of ketamine and that is the case to which I shall follow in regard to sentencing you for the present offence.

9.The amount to which the charge states you were trafficking in is 100 grammes.  Taking into account the full amount of a 100 grammes of ketamine, the starting point after trial would be one of about 78 months’ imprisonment.  However, what is clear to me now, as agreed between yourself, the defence and the prosecution, that only 80 grammes was for the purposes of trafficking.  Taking 80 grammes as the amount for trafficking in dangerous drugs of ketamine and following Hii Siew Cheng, the starting point for that amount of drugs would be 75 months’ imprisonment.  What you did have in your possession, however, was 20 grammes for your own consumption.  You do have previous convictions for possession of dangerous drugs and I must take into account that conviction too when sentencing you for possession of dangerous drugs.

10.Furthermore, I must also take into account that these drugs, although for your own consumption, there was a latent risk of trafficking for if you had been sentenced for just possession of 20 grammes of ketamine, then I would have taken 12 months’ imprisonment, the starting point plus 6 months for the latent trafficking point and that would have been a sentence of 18 months’ imprisonment.  However, I must also take into account here what I feel is the principle of totality. 

11.Given the fact that you did have 20 grammes for your own consumption and 80 grammes for trafficking, I will take a starting point for both these of 76 months’ imprisonment as a starting point. 

12.Defendant, you have pleaded guilty which warrants credit of a one-third discount from that term. There are special circumstances on the papers before me which justify a more lenient view to be taken on the facts.  Giving you a further discount for that, defendant, I discount that and sentence you to a term of 45 months’ imprisonment.  That means a total of 3 years and 9 months’ imprisonment to which you shall be so sentenced.