HKSAR v. Chung Chor Man and Another

DCCC 45/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 45 OF 2014

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Reasons for Sentence

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1.The 1st defendant has pleaded guilty to a charge of trafficking in 44.16 grammes of ketamine. The 2nd defendant has pleaded guilty to two charges. The 1st charge is one of trafficking in 21.52 grammes of ketamine, and the 2nd charge is one of trafficking in 122 grammes of ketamine.

2.The facts admitted by the defendants state that two officers were on plainclothes duty in Tsuen Wan on the evening of 18 October.  They noticed the defendant in the vicinity and he was acting suspiciously.  The officers approached him and the defendant tried to flee, but he was detained by the police officers.  He was searched, and the drugs the subject of the charge were found in his possession.  He admitted that they were ketamine.  He said that a friend had given him $200 and asked him to deliver the drugs to other persons, and he was waiting for a phone call to make the delivery; and he indicated that the friend was the 1st defendant, Chung Chor-man.

3.When he was subsequently formally arrested and cautioned, the defendant asked for a chance, and he said that he helped to deliver the drugs because he owed other people over $200,000.

4.Whilst they were dealing with the 2nd defendant, the officers noticed the 1st defendant on the other side of Heung Shing Street in Tsuen Wan, and he also was behaving in a suspicious fashion.  The officers approached the defendant and searched him. They found the drugs the subject of the 2nd charge in his right front trouser pocket.  He was cautioned and arrested, and he admitted that the drugs were ketamine.  He said he had received them from a friend called “Ah Keung” for $3,000 in Mong Kok, and he had come to Tsuen Wan in order to find a friend.

5.He was arrested and cautioned, and said that his wife was just pregnant, and he was only carrying the drugs to earn money to support the family. 

6.After the two defendants had been arrested, the police officers searched premises occupied by the 2nd defendant, which were in Tai Po.  When they arrived there, the defendant’s girlfriend was present.  On a table in the middle of the living room a number of items were found.  They included the drugs the subject of the 3rd charge, and also a spoon, an electronic weighing scale, and an empty transparent resealable plastic bag containing 11 empty transparent resealable plastic bags.

7.The defendant was again arrested and cautioned in respect of the drugs found at his home, and he admitted the drugs were ketamine.  He said that he had got them from someone called “Wah Kee” for $6,000 outside the Tai Wo train station.  He said he bought it for fun and sharing with friends who might visit him.  He said he would use the spoon to divide the ketamine into transparent plastic bags and would use the weighing scale to weigh them.  He said that the lady who was at the flat was his girlfriend, and that he had told her that the substance was monosodium glutamate, and told her not to touch them.

8.The value of the drugs seized from the 1st defendant is just under $7,000.  The value of the drugs seized from the 2nd defendant is slightly in excess of $22,000.

9.The 1st defendant has previous convictions recorded against him.  There was a relatively minor conviction in 2003. However, in 2009, for trafficking in dangerous drugs he was sentenced to 4 years’ imprisonment, and I understand that he was released from that imprisonment in 2012.

10.In mitigation I am told that the first defendant is 28 years of age and was born in Hong Kong.  He was raised in a single‑parent family, his parents having separated a long time ago.  His father has other family, and the defendant seldom contacts his father.  He has no other siblings.  I am told that he is single and lives with his mother.  I am also told that his mother is in court today and she is obviously very concerned about the situation.

11.The defendant was educated to Form 3 standard.  Before arrest he was working as a casual worker on a construction site, earning around 12,000 per month, out of which he gave $6,000 to his mother.

12.I am told that the reason he committed the offence was because of financial difficulties.  He said that his girlfriend was pregnant and he needed money to support her.

13.The main feature of mitigation in this case of course is the fact that the defendant has pleaded guilty to the offence.  He was co‑operative after he was arrested, immediately admitted the offence, and he has expressed his remorse for being involved in this offence.

14.The 2nd defendant has a clear record.  I am told that he is 26 years of age, and his parents divorced when he was 1 year old.  He grew up in a single-parent family, living with his mother.  After finishing school he went to a vocational institute to continue his studies, but gave that up when he was aged 19 because of the pressing financial needs of his family.  I am told that his mother has suffered from mental illness since he was born, and she has struggled to provide financially for the family.

15.He has written a letter to the court expressing his remorse for his involvement in this offence.  As he said when he was initially arrested, the motivation for this offence was because he owed other people money resulting from a gambling loan.  Before his arrest, he had moved out of the family home and was living with his girlfriend.  He was being pressed by the people who had provided him with the loan to repay that loan, and a friend told him of a way to earn quick money.  He said he now realises he has made a huge mistake.

16.I am told that during his period of detention his father has been in contact with him and assisted him to apply for bankruptcy, and the defendant hopes to start afresh once he is released from prison.

17.I have had letters placed before me from the defendant’s mother and also from a social worker involved with the Caritas Integrated Family Service Centre.

18.The mother’s letter tells of the very difficult upbringing the defendant has experienced.  It states that because of her problems, at one stage, the defendant had to attend a boarding school.  The defendant himself has had to receive some psychological assistance.  The mother’s letter speaks of the defendant as being a hard-working and devoted son, and that it was only because of the loan that he involved himself in drug trafficking.

19.The letter from the social worker confirms what is stated in the letter from the mother.  The social worker has noticed that the defendant’s arrest has had a dramatic effect on his mother, who is rightly very worried about her son and the sentence that will be imposed for this serious offence.  She says that the mother has visited her son every week whilst he has been in custody awaiting sentence, and she urges the court to impose a lenient sentence.

20.As both defendants know, these offences are very serious.  The courts have stated repeatedly that persons found trafficking in significant quantities of drugs will receive lengthy custodial sentences.

21.Obviously the 1st defendant was well aware of the risks he was taking, having been convicted in 2009 of a similar offence. The 1st defendant was found in possession of 44.16 grammes of ketamine. The Court of Appeal has stated that for persons found trafficking in between 10 and 50 grammes, the appropriate sentence is in the 4 to 6 years range.  The amount found in the possession of this defendant is at the higher end of that range.

22.As far as the 1st defendant is concerned, I take a starting point of 5 years and 9 months’ imprisonment.  I reduce that by one-third to reflect his guilty plea.

23.The defendant will go to prison for 46 months.

24.2nd defendant, you have pleaded guilty to two charges.  The 1st charge is trafficking in 21.52 grammes of ketamine, and the second offence to which you have pleaded guilty is trafficking in a considerably greater quantity of drugs:  122 grammes.

25.In respect of the first offence, I take the view that the appropriate starting point is 4½ years’ imprisonment.  The defendant is entitled to credit for his guilty plea, and that will be reduced to 3 years’ imprisonment.

26.In respect of Charge 3, in my view the appropriate starting point is 6 years and 6 months’ imprisonment, and after being given credit for his guilty plea, that would be reduced to 4 years and 4 months’ imprisonment.

27.I have to consider the question of totality; whether these offences will run concurrently, consecutively, or partly consecutively.

28.The drugs in respect of the 2nd charge were found in the possession of the defendant, and the drugs in respect of the 3rd charge were found at his flat later that night, I have decided that the appropriate way to view these offences is to take a global view of the amount found in the defendant’s possession.

29.I have decided that the appropriate total sentence after giving credit for the guilty plea is 4 years and 8 months’ imprisonment, and what I propose to do is order that 20 months on Charge 3 shall run consecutive to the 36 months on Charge 2.

30.The total sentence in respect of the 2nd defendant is 4 years and 8 months’ imprisonment.