HKSAR v. Choi Yiu Cho

DCCC 714/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 714 OF 2013

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REASONS FOR SENTENCE

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

Summary of Facts

2.About 2:40 am on 29 May 2013, the defendant, who was driving private car KB 7850, was stopped at a road block set up at Castle Peak Road in Lam Tei, Tuen Mun for a routine check.

3.When returning the ID documents to the defendant, PC 7410 saw 2 transparent resealable plastic bags (collectively E1; later found to contain a total of 35.92 grammes of a powder containing 8.32 grammes of ketamine) in the driver seat door storage compartment.  Under caution, the defendant admitted that the 2 packets of ketamine were for selling to others.

4.The defendant was searched and the following items were found on him :-

(i) 1 transparent resealable plastic bag which contained 0.23 gramme of a crystalline solid containing 0.23 gramme of methamphetamine hydrochloride (E2) inside his left sock;

(ii) 1 transparent resealable plastic bag which contained 0.81 gramme of herbal cannabis (E3) inside his right sock;

(iii) 1 transparent resealable plastic bag containing 6 transparent resealable plastic bags which contained a total of 1.55 grammes of a solid containing 1.27 grammes of cocaine (collectively E4) inside his left sock; and

(iv) 1 transparent resealable plastic bag which contained 74 smaller transparent resealable plastic bags (collectively E5) inside his bag.

5.In his video recorded interview, the defendant admitted that he purchased 2 packets of ketamine at $2,000 from a male named "Ah Yin" in Yuen Long.  He intended to sell the ketamine at $200 to $300 for each small packet.  He claimed that after purchasing the ketamine, Ah Yin gave him E2 to E4.  He intended to keep them for self-consumption so he put them inside his socks.  The defendant also admitted that the empty resealable plastic bags contained in E5 were for packaging the ketamine for sale.

Mitigation & Sentence

6.The defendant is now 25 and has 3 conviction records, one of which is "simple possession".  He was sentenced to 2 months' imprisonment earlier this month for a triad-related offence.

7.Defence lawyer Ms. KAM informed me that the defendant's parents had a divorce when he was young.  After the divorce, his mother took him to live in the United States at the age of 8.  He returned to Hong Kong after completing high school.  The defendant currently resides with his girlfriend and their 3-year-old daughter in Shenzhen.  He previously worked as a chef to support them.  At the time of the offences, he was unemployed.  A letter written by the defendant was placed before me; its contents are duly noted.

8.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 even for fresh offenders.

The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see SJ v HII Siew Cheng [2009] 1 HKLRD 1). For up to 10 grammes, the sentence ranges from 2 to 4 years' imprisonment.

9.In Charge 1, the defendant trafficked in 8.32 grammes of ketamine.  I adopt a starting point of 3.5 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 28 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence I pass is 28 months' imprisonment.

10.In Charge 2, the defendant possessed 0.23 gramme of ICE, 0.81 gramme of herbal cannabis and 1.27 grammes of cocaine.  Since a variety of drugs are involved and the cocaine was contained in 6 packets, I adopt a starting point of 18 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 12 months.

11.Having considered the totality principle, I order 6 months in Charge 2 to run consecutive to Charge 1, thereby arriving at a total prison term of 34 months for both charges.

12.The defendant is currently serving a 2-month sentence in TWCC 1377/2013.  Having considered the different nature in that case and the totality principle, I order the sentences in the present case to run consecutive to TWCC 1377/2013.  Thus, the total prison term for both cases is 36 months.

Please refer to CACC158/2014 for the relevant appeal(s) to the Court of Appeal.