HKSAR v. Cheng Ka Chun

DCCC 662/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 662 OF 2013

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2.The particulars are that on 26 March this year, at Room 127, Chun Chak House, Nga Ning Court, Cheung Chau, the defendant unlawfully trafficked in namely 31.12 grammes of a powder containing 23.33 grammes of ketamine.

3.This defendant has been in custody since his arrest on that day.

4.The facts of the case are very straightforward.

5.The police intercepted the defendant as he left those premises, which were obviously under observation.  The defendant was searched by the police at the entrance of that building.  A plastic bag containing 1.01 grammes of a powder containing 0.76 grammes of ketamine was found on the defendant.  He admitted he possessed the ketamine for his own consumption. 

6.The defendant was then taken to the premises. The key to the premises was found on the defendant.  The premises were then searched.

7.In the premises, the police found several bags in different places containing ketamine.  To be precise, the bags contained a total of 30.11 grammes of a powder containing 22.57 grammes of ketamine.

8.In addition, the police found an electronic scale, a spoon next to a bag of ketamine and many small transparent resealable plastic bags used to contain drugs.  The paraphernalia found are commonly associated with those that traffic dangerous drugs.  They are used to pack drugs.

9.Under caution, the defendant admitted that he possessed the ketamine found in the premises.  He also explained to the police where he bought the ketamine and how much he paid and said he bought it for his own consumption.  He said that he had a habit of inhaling ketamine and would inhale about 0.5 to 0.7 grammes of ketamine each time one to two times a day.  He said he was a drug addict.

10.There was another male found in the premises and he denied all knowledge of the drugs found in the premises.

11.I have been told that the estimated street value of all the drugs found in the premises and on the defendant was about $3,700.

12.I can accept that if drugs are purchased in bulk, a discount would follow.

13.The defendant accepts that he was trafficking the ketamine but that a portion of it he would consume and that some would be shared with others and accepts that there is a latent risk of dissemination of the ketamine in his possession.

14.I have been told that the other male in the premises was also a drug addict.

15.I have been referred to the authority of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and, in that, the Court of Appeal lists out factors the court would consider when deciding whether to accept the submission that not all drugs found were for the purposes of trafficking.

16.I have considered those factors.

17.I have been told the defendant was gainfully employed and earned $12,000 a month, inferring he could afford to buy dangerous drugs. 

18.I have noted he has a previous conviction for possession of dangerous drugs and part 1 poison and it is submitted on his behalf he is a drug addict.

19.That authority,  Wong Suet Hau, accepts that sentences can  be adjusted to reflect that a defendant may consume some of the dangerous drugs involved. 

20.The same is said and I have referred myself to another authority, HKSAR v Chow Chun Sang, CACC 135/2011, in particular, translated copy at paragraph 19.  It supports what was said in Wong Suet Hau.

21.Mr Boyton realistically submits that he cannot quantify what portion found was for self-consumption.

22.Having considered the facts and mitigation, I do accept that a portion may be for his own consumption, but I also keep in mind that possession, simpliciter, carries a term of imprisonment and if a latent risk existed, like it does here, any starting point could be enhanced.

23.If I was to find the defendant trafficked the entire amount of 22.57 grammes of ketamine, and that excludes the dangerous drugs found on him, I would be considering a starting point of 4 years and 6 months.  That is in accordance to the authority of Secretary for Justice and Hii Siew Cheng [2008] 3 HKC 323.  In that authority, the Court of Appeal says that where between 10 to 50 grammes of ketamine is trafficked, a 4- to 6-year term of imprisonment would be appropriate.

24.Defendant, please stand up.

25.I take into account mitigation put forward, I take into account you have previous convictions but none for trafficking in dangerous drugs, and I have accepted what was said in mitigation that some portion of this may be for your own consumption.

26.I would, after considering all those factors, reduce the starting point I referred to (4 years and 6 months) to 4 years.  It is a reduction of 6 months or just over 10 per cent.

27.The defendant has pleaded guilty and is entitled, therefore, to a discount of one-third from the appropriate starting point.  It is a discount of 16 months.

28.Accordingly, the defendant for this offence is sentenced to 2 years and 8 months’ imprisonment.