HKSAR v. Cheung Wai Chun

HCCC 32/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 32 OF 2015

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REASONS FOR SENTENCE
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1.The defendant was committed to the Court of First Instance for sentence having pleaded guilty in the Magistrate’s Court for trafficking in a dangerous drug.

2.The agreed facts were as follows.  On 7 July 2014, the police were conducting routine checks of motor vehicles by way of a roadblock outside the Hong Kong Golf Club, Sheung Shui, New Territories.  At about 2:35am that day, the police stopped a taxi with the defendant as the only passenger on board.  They observed that the defendant was behaving suspiciously and appeared to be hiding something under the front passenger seat.  They searched the taxi and found under the front passenger seat a recycled bag inside of which was 0.24 kg of a powder containing 0.21 kg of ketamine.  They also searched the defendant and they found in a pocket of his trousers a small packet inside of which was 9.88 g of a powder containing 8.42 g of ketamine.  The street value at the time of the offence of the ketamine seized was $31,485.

3.The defendant was arrested and upon being cautioned said “Ah Sir, I pulled the K from Yung Shing Court to Tsui Keng for someone.  No idea about how much money to be collected.  Money would be collected only after arrival.”

4.The defendant admitted that he knew that the drugs seized were ketamine and that he had possessed them for the purpose of trafficking.

5.The defendant is 23 years old.  It is admitted that he has a drug addiction.  He has a prior conviction for trafficking in dangerous drugs which he committed in 2010 when he was 19 years old and for which he was sentenced on 22 December 2010 to attend a Drug Addiction Treatment Centre.  I am informed that he was discharged in June 2011 but was recalled to serve a further two months in March 2012.  This seems to have due to a relapse of his drug addiction.  He was eventually discharged on 22 May 2012. 

6.I am informed that he is single and at the time of the offence lived with his parents and two elder sisters.  However, it was only recently that the family moved from Shenzhen to Hong Kong.  He had been living with an aunt in Hong Kong who brought him up.  He would visit his family in Shenzhen over weekends until they were reunited.

7.I am also informed that he left school at form three level due to a poor academic performance.  He began working at McDonald’s and later as a casual construction site worker.  It was then in 2007, due to the influence of others, that he began taking ketamine.  This resulted in his drug conviction and after serving his sentence he worked for a short while as a casual worker at a shipyard but was unemployed at the time of his arrest for this offence.

8.Since 2009, the defendant suffered from tuberculosis.  In December 2014, whilst in custody, the defendant received an operation to remove part of his left lung as a result of his illness.  He was also required to take medication for nine months following the operation to control his illness.

9.Mr Bernard Chung, who appears on behalf of the defendant, has submitted in mitigation that the defendant is very remorseful for his past misdeeds and has submitted a letter from the defendant in which he acknowledges the error of his ways and states that he desires to improve his life in the future.  He asks to be treated leniently.  Mr Chung has also submitted letters from his two elder sisters and a pastor and friends from the Hong Kong Evangelical Yan Lam Church.  They all speak favourably of the defendant.  He attended the church at an early age and was regarded as a good-natured person who got on well with others and showed promise in his future endeavours.  It is clear that he was well liked and respected within the church congregation.  I accept what has been said on his behalf from his family and friends and given his young age and genuine expression of remorse and desire to change his ways, I will impose as lenient a sentence as I can. 

10.The quantity of ketamine involved consisted of two amounts.  The first quantity of 210 g related to the large packet which the defendant admitted he was delivering on behalf of others for reward. The second quantity of 8.42 g related to the small packet which I accept was for self consumption.  I have decided that given the young age of the defendant and the potential future promise that I believe he shows, I will sentence him as leniently as I possibly can.  The sentencing regime for trafficking in ketamine is governed by guidelines laid down in S for J v Hii Siew Cheng [2009] 1 HKLRD 1 and the starting point for the quantity of ketamine involved of 218.42 g is 8 years’ imprisonment.  Given that a small quantity was for self-consumption, I will impose a starting point of 7 years and 8 months’ imprisonment.  See HKSAR v Wong Suet-hau and Anor [2002] 1 HKLRD 69.  The defendant has pleaded guilty for which he is entitled to a one-third discount and accordingly he is sentenced to 5 years and 1 month’s imprisonment.

Ms Sabra Lo, SPP of Department of Justice, for HKSAR

Mr Bernard W K Chung, instructed by Director of Legal Aid, for the defendant