HKSAR v. Yim King Shing

DCCC 703/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 703 OF 2014

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REASONS FOR SENTENCE

1.Yim King Shing you have pleaded guilty to two charges of trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2.In summary at around 3:53 p.m. on the 2 May this year you were intercepted by the police when leaving Wai Bun Building, No. 126 Pei Ho Street in Sham Shui Po. The police searched the bag you were carrying and found a total of 45 plastic bags, containing a total of 106.26 grammes of a powder, containing 88.28 grammes of ketamine.  Under caution you admitted you were delivering the ketamine (charge 1).

3.The police then searched your residence at Room C of Flat C on the 7/F of Wai Bun Building.  Inside the premises the police found 3 plastic bags containing a total 0.51 gramme of a solid containing 0.41 gramme of cocaine; 2 plastic bags containing a total of 8.87 grammes of a powder, containing 7.37 grammes of ketamine; 17 bundles of unused resealable plastic bags and an electronic scale.  Under caution you said the drugs were for self-consumption and the plastic bags and scale were for packing ketamine (charge 2).

4.In passing sentence I have carefully considered everything said on your behalf by Mr Wong.  I take into account you have no convictions for trafficking in drugs.  In this regard it is to be noted that the criminal record shows that on the 5 January 2012 you were convicted of trafficking in drugs in KCCC 4133/2011.  The case papers have been checked and confirmed that the charge was amended to possession of drugs for which you were sent to the DATC.  The prosecution have undertaken to ensure the criminal record is corrected.

Charge 1

5.In Secretary for Justice v Hii Siew Cheng[2008] 3 HKC 325 the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 50 and 300 grammes sentence after trial falls within the range of 6-9 years imprisonment. I am satisfied the proper starting point after trial for 88.28 grammes of ketamine is 6 years and 6 months imprisonment.  Giving you full credit for your plea of guilty reduces the sentence to 4 years and 4 months imprisonment.

Charge 2

6.Charge 2 relates to two drugs ketamine and cocaine.  You say that the cocaine and most of the ketamine found in your home was for your own use.  That being the case the proper plea to have entered would have been one of not guilty to trafficking in cocaine (see HKSAR v To Chu Kong CACC 350/2013). 

7.Taking into account the quantity of cocaine and that you have been to the DATC on two occasions, the last being for ketamine addiction, I am prepared to accept that the cocaine may have been for your own consumption and that some of the ketamine found in your residence may also have been for your own consumption but not most of the ketamine.  I note this is also the position taken by the prosecution.

Ketamine

8.Where the narcotic content is between 1 and 10 grammes the sentence after trial falls within the range of 2-4 years imprisonment.  I am satisfied the proper starting point after trial for 7.37 grammes of ketamine is 3 years and 6 months imprisonment.   

Own use

9.In deciding how much weight should be attached to the fact some of the ketamine may have been for your own use I have considered the decision in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 and HKSAR v Cheuk Kin Man [2010] 5 HKLRD 561.

10.Taking into account the quantity of ketamine; the packaging; the drugs were found in your residence; possession of drugs carries a sentence in any event; and the latent risk factor, I am satisfied the starting point should be reduced by 9 months to one of 2 years and 9 months imprisonment.

Cocaine

11.Mr Wong submits the amount of cocaine is insignificant and therefore should be disregarded by the court in sentencing.  I disagree.  I do not accept that 0.41 gramme of cocaine, which is a more potent drug than ketamine, whilst small, is so small to be disregarded in sentencing. 

12.Had a charge of possession of cocaine been preferred, absent a recommendation for treatment in the DATC, a starting point of not less than 9 months would have been appropriate for possession of 0.41 gramme of cocaine where there was a history of drug addiction (see for example HKSAR v Mok Cho Tik [2001] 1 HKC 261).

13.To enhance the starting point for the trafficking by 9 months would however in my view be excessive.  I am satisfied that 3 months is to be added to the starting point for trafficking in the ketamine making a starting point of 3 years imprisonment.  Giving you full credit for your plea of guilty reduces the sentence to 2 years imprisonment.

Totality

14.The total amount of ketamine in the two charges is 95.65 grammes.  Considering part of the ketamine found in your residence may have been for your own use I am satisfied the overall starting point for the ketamine remains the same as for charge 1, namely 6 years and 6 months imprisonment. 

15.This leaves the cocaine.  The cocaine being a different and more potent drug makes this separate and distinct from trafficking in ketamine.  I am satisfied this must be reflected in the sentence and therefore the addition for the cocaine on charge 2 should be made consecutive to the sentence on charge 1. 

16.This makes an overall starting point of 6 years and 9 months imprisonment and a sentence after plea of 4 years and 6 months imprisonment, which I am satisfied properly reflects your criminality on the two trafficking charges.

17.You are convicted and sentenced as follows:

Charge 1 – 4 years and 4 months imprisonment; and

Charge 2 – 2 years imprisonment with 2 months consecutive and 1 year and 10 months concurrent to charge 1.

Suspended sentence

18.Your conviction places you in breach of a suspended sentence of 3 months imprisonment suspended for 2 years which was imposed on you on the 16 May 2013 in KCCC 285/2013 for an offence of resisting a police officer committed on the 6 November 2012.

19.I have had the opportunity of reading the case papers and note the resisting relates to you running away from the police.  This was at a time when you were wanted for being in breach of the aftercare supervision order you were subject to on release from the DATC.  You ran away because you did not want to go back to the DATC. Having been arrested you were, prior to being charged for resisting a police officer, recalled to the DATC.

20.I am satisfied there are no exceptional circumstances whereby it would be unjust to activate the suspended sentence.  Considering totality of sentence I am however satisfied that it would be just to activate only 1 month consecutive and 2 months concurrent making a total sentence to be served by you of 4 years and 7 months.