HKSAR v. Chan Kam Fai

DCCC 882/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 882 OF 2014

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REASONS FOR SENTENCE

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

2.The drug in question is ketamine and the quantity is 78.2 grammes of a powder containing 55.26 grammes of ketamine.

3.The summary of facts admitted by the defendant state that on 31 July 2014 at around 1650 hous the defendant was seen sitting in the front passenger seat of a private car parked at Po Lok Square in Yuen Long.  Another man Ho was sitting in the driver’s seat.

4.PC 7961 approached the car and revealed his identity and asked both the defendant and Ho to alight.  Body searches on both persons were conducted but nothing was found.

5.PC 12815 conducted a search of the car and underneath the carpet of the front passenger seat found one re-sealable bag containing 6 re-sealable bags of white powder.  Subsequent analysis by the Government Chemist confirmed the white powder to be the dangerous drugs the subject of the charge.

6.The defendant was arrested and under caution admitted the ketamine belonged to him and he wanted to earn some money.

7.At the time of his arrest the defendant had two mobile telephones with him and HK$120.  There is nothing in the summary of facts concerning the status of the mobile telephones whether they were contract telephones or installed with a pre paid SIM card.  Further there is no information concerning any call records.  Without this additional information which may link these telephones to an act of trafficking the inclusion of paragraph 5 in the summary of facts is therefore virtually meaningless.

8.Nothing was found during a house search of the defendant’s premises.

9.The defendant was subsequently interviewed under caution.  The interview was video recorded.  During the interview the defendant  the defendant stated inter alia:-

(a) The 6 plastic bags containing the ketamine belonged to him;

(b) He placed the bags underneath the passenger seat after Ho had got out of the car to use the toilet; and

(c) He had all along sat in front passenger seat.

10.The street value of the ketamine is around HK$9,618.

11.It is not clear from what the defendant told the police how he was to recover the drugs from under the seat without Ho knowing about it or why he was in the car in the first place.  There is a strong suspicion the defendant’s admission was nothing more than to take the blame and let Ho off the hook.

12.Beyond the quantity of the drugs and possibly the packaging and the defendant’s own admission backed by his plea to the charge there is nothing in the facts which show the trafficking of the drugs such that it is not clear whether the defendant was a middle man or a street distributor to addicts.  However this is a clear case of commercial trafficking as opposed to social trafficking.

13.The defendant has 5 previous convictions including two previous convictions for trafficking in a dangerous drug committed in 2007 for which he was sentenced to a total of 12 months imprisonment.  I am informed those convictions also related to ketamine.

14.The guideline sentences for trafficking in ketamine were set out by the Court of Appeal in Secretary for Justice v Hii Siew Cheng & Anor [2008] 3 HKC 323.

15.For quantities of between 50 and 300 grammes a sentence of between 6 to 9 years after trial is appropriate.

16.In mitigation Mr Chu who appears for the defendant said the defendant 29 years old.  He understands the seriousness of the offence.  The defendant has pleaded guilty and rendered co operation to the police.  He had been unemployed and asked to traffic in the dangerous drugs for a reward of $3,000.  The defendant had been assured the risk was low and all he had to do was take the drugs in the specified car from one location in Yuen Long to another.

17.The defendant has also written a letter in mitigation to the court.  In it he says he has a deep reflection for what he has done and is remorseful.  His brother is also in Pik Uk and will be released in 2016.  His mother passed away some time ago.  His father suffers from an unspecified illness as a result of which he could not give his full attention to bringing up the children.

18.In the letter the defendant has included a poem which effectively states one does not treasure youth until it has passed and once passed there is no turning back.

19.Mr Chu also prepare an outline written mitigation which sets out some background such as the defendant’s previous employment for which he was earning $10,000 per month.  He was unemployed at the time and became involved in this act of trafficking in order to earn some money.

20.I bear in mind the quantity of ketamine is just over the 50 grammes threshold taking the amount into the higher bracket of 6 – 9 years as set out in the Hii Siew Cheng guidelines.

21.In all the circumstances I will adopt 6 years and 6 months imprisonment as the starting point.

22.The defendant’s only real mitigation is his plea of guilty for which he will be allowed the usual one third discount.  There is nothing else advanced in mitigation which would serve to reduce the sentence further and accordingly the defendant is sentenced to 4 years and 4 months imprisonment.