HKSAR v. Cheong Chun Yiu, Jeffrey
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DCCC 122/2015 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 122 OF 2015 -----------------------------------
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---------------------------- Reasons for Sentence ---------------------------- 1.The defendant pleaded guilty to one charge of trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. Particulars are that he on 7th December 2014 unlawfully trafficked in 129g of a powder containing 61.2g of ketamine and 1.48g of a solid containing 0.61g of cocaine. Summary of facts 2.While on anti-narcotics operation on 7th December 2014, at a few minutes past 9 pm, Police officers saw a white private vehicle (HC9910) stopped on an unnamed road near Ng Uk Tsuen in Yuen Long. The defendant was seen getting out of the vehicle and walking to a bush near a firebox, picking up a red recycled bag. The defendant looked into the bag and put his hand inside. That was when Police officers went up to intercept him. 3.Upon search, the defendant was found to be carrying a red plastic bag containing 10 transparent re-sealable bags containing some white substance; 7 transparent re-sealable bags with yellow solids; and a pile of smaller re-sealable bags in another transparent bag. The defendant also had two mobile phones and two SIM cards in his right jacket pocket, together with $5,200 cash in his left front trousers pocket. The defendant remained silent under caution. 4.In a video recorded interview the following day, the defendant said that the white and yellow substance were ketamine and cocaine respectively and that they all belonged to him for his own consumption. The defendant said that he bought the drugs from one Ah B in Yuen Long for about $8,000 at around noon on the day before his arrest. He had hidden the drugs at the scene of arrest to avoid being caught by the Police. The defendant also claimed that since he did not hold a driving licence, he asked a friend of his to drive him to Ng Uk Tsuen using a borrowed car. The defendant was unemployed and was not receiving any government assistance. 5.Government Chemist later confirmed that the 10 transparent bags contained a total of 129g of a powder containing 6.12g of ketamine, and the 7 transparent bag contained a total of 1.48g of a solid containing 0.61g of cocaine. The estimated street value of the ketamine and the cocaine is $18,447 and $1,416 respectively. Previous convictions 6.The defendant has 7 convictions with one relating to dangerous drugs. The defendant was sentenced to the drug addiction treatment centre in 2013 for the possession of dangerous drugs. It would appear that the defendant committed the present offence not too long after his release from the 2013 convictions. He was sentenced to the DATC again in December 2014 for wounding under s.19 of the Offences Against the Person Ordinance, Cap.212, with the latest date of discharge being 21st December 2015. Mitigation 7.The defendant is 20 years old and will turn 21 on 24th June. The defendant’s parents are divorced and he lives with his father and sister. Around the time of the commission of the offence, the defendant allegedly worked as a casual worker in surveying work at construction sites, earning about $20,000 a month. The defendant is however unable to give the full name of his employer to his counsel, nor is he able to produce any proof of employment, such as wage receipts. 8.Mr. Fung informed the court that the social workers who are handling the defendant’s case are of the view that the defendant is a young man who stands a chance of rehabilitation. They are in court, on their own time, to show their support. 9.Given the large quantity of ketamine and the small quantity of cocaine that we are dealing with, Mr. Fung suggests a combined approach with a slight adjustment when sentencing the defendant. 10.It is Mr. Fung’s submission that the defendant claims that a quarter of the ketamine was for the defendant’s self-consumption. Sentencing tariff 11.Sentencing tariff for trafficking in heroin as set down in R v Lau Tak-ming [1990] 2 HKLR 370 was held to apply to trafficking in cocaine as well in the case of Attorney General v Pedro Nel Rojas [1994] 1 HKC 342. The tariff sentence for trafficking in cocaine of a quantity of up to 10 grammes is that of 2 to 5 years’ imprisonment. 12.Sentencing tariff for trafficking in ketamine is set down in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006. The tariff sentence for trafficking in ketamine of 50 to 300 grammes is 6 to 9 years’ imprisonment. 13.There are two different drugs involved in the present case. However, given the small quantity of cocaine involved and the relatively large quantity of ketamine involved, I find that the sentence should be based mostly on the ketamine, with a slight adjustment for the relatively insignificant quantity of cocaine. 14.Trafficking in dangerous drugs is an excepted offence and as such s.109A of the Criminal Procedure Ordinance, Cap.221 does not apply and imprisonment need not be the last resort when sentencing the defendant who is below 21 years old. In any event, given the large quantity of drugs involved, I find that an immediate custodial sentence is the only appropriate sentence. Self-consumption 15.In the case of HKSAR v Wong Suet Hau, CACC 366/2000, the Court of Appeal gave guidance on how to deal with situations where it is suggested in mitigation that ‘a significant proportion of the drugs was intended for’ self-consumption and not for trafficking. I must look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the defendant’s contention that one quarter of the ketamine was for his self-consumption. 16.The quantity of the powder found was 129 grammes, with a street value of $18,447. The ketamine (white substance in paragraph 2 of the summary of facts) were contained in 10 transparent re-sealable bags, together with a pile of smaller re-sealable bags. The drugs were not found at a residential address but some 8.5 km away from the defendant’s home in Mai Po Tsuen. The drugs were hidden near a firebox on an unnamed road, a public place, where the defendant was driven by someone else to pick up. There was no presence of paraphernalia associated with drug consumption found on the defendant. There is evidence that the defendant is a drug addict given his admission to the DATC. The defendant did say that all the drugs were for his self-consumption in the video recorded interview. 17.Although the defendant claims that he was working and earning $20,000 a month at the time, it contradicts what he had told Police earlier in his antecedent statement. The defendant was not able to come up with the name of his employer nor any wage receipts. The defendant is educated up to form 5 level with a conviction record. At the time of the present offence, he would have been released from the DATC not too long ago. I find it inherently improbable that he would have been able to secure employment earning $20,000 a month as a casual worker doing surveying work at construction sites. 18.Even if it is accepted that one quarter of the ketamine was for the defendant’s self-consumption, which would be 15.3g of ketamine (with 45.9g of Ketamine being for trafficking which would attract a starting point of 69 months) the possession of the 15.3g of ketamine would also carry a sentence. For that amount and with the defendant’s conviction history, I would have adopted a starting point of 12 months’ imprisonment for the possession of the 15.3g of ketamine. The total sentence after accepting that one quarter of the ketamine was for the defendant’s self-consumption would then be 81 month’s imprisonment, which is actually higher than if the full amount of Ketamine was taken to be for trafficking. 19.Nevertheless, after careful consideration of all the circumstances as mentioned above, I find that I cannot accept the defendant’s contention that one quarter of the ketamine was for his self-consumption. Sentence 20.On that basis, applying the guidelines, I adopt a starting point of 75 months’ imprisonment for the charge. In adopting this starting point, I have already taken into account the small amount of cocaine. 21.I find that there are no aggravating or mitigating circumstances other than the defendant’s guilty plea to warrant an adjustment to this sentence. 22.The defendant is therefore sentenced to 50 months’ imprisonment after plea. Effect of imprisonment on the defendant’s present DATC order 23.Pursuant to section 6A(1)(b) of the Drug Addiction Treatment Centres Ordinance, Cap.244, since the defendant has been sentenced to a term of imprisonment of more than 9 months, his DATC detention order imposed on 22 December 2014 in TM/2321/14 shall cease to have effect.
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