HKSAR v. Chung Chi Kit and Another

HCCC 371/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 371 OF 2014

_______________

_______________

________________________

REASONS FOR SENTENCE

________________________

1.The 1^st and 2^nd defendants were committed for trial in the Court of First Instance on separate drug offences in relation to events that occurred on 1 April 2014. The 1^st defendant was charged with a single count of trafficking in 3.95 kg of a powder containing 2.65 kg of ketamine (Count 1). The 2^nd defendant was charged with a single count of trafficking in 2.2 kg of a powder containing 1.84 kg of ketamine (Count 2) and a single count of possession of 2.28 g of a powder containing 1.96 g of ketamine (Count 3).

2.The trial of the two defendants was fixed for 28 July 2015 with 8 days set aside together with a pre-trial review fixed for 9 June 2015.  By letter dated 10 December 2014, the solicitors acting on behalf of the 1^st defendant indicated that he would plead guilty and accordingly on 19 March 2015 the 1^st defendant pleaded guilty to Count 1.

3.In the meantime, the 2^nd defendant indicated that he would plead guilty and accordingly at today’s hearing he pleaded guilty to Count 2 and not guilty to Count 3.  The 2^nd defendant was convicted on Count 2 on his own plea and he was acquitted on Count 3 following the offering of no evidence by the prosecution. 

4.The facts admitted and agreed to by the 2^nd defendant on his plea of guilty are as follows.  At about 6.00pm on 1 April 2014, a team of plainclothes customs officers, who were patrolling at Langham Place, Mong Kok, observed the two defendants entering the same toilet cubicle in the men’s toilets on the ninth floor of the building.  The 1^st defendant was carrying a cross shoulder bag. 

5.About 15 minutes later, the 1^st defendant came out of the toilet cubicle and was immediately intercepted by customs officers.  One of the customs officers approached the 2^nd defendant and disclosed his identity to him but the he pushed the officer away and attempted to flee.  He was quickly subdued by other customs officers. 

6.Customs officers searched the 2^nd defendant’s cross shoulder bag and found five black plastic bags containing nine transparent plastic bags of a total quantity of 2.2 kg of a powder containing 1.84 kg of ketamine.  The estimated retail value of the drugs at the time of seizure was $259,600.

7.The 2^nd defendant upon caution claimed that he did not know what the substance was in the bag.  He said “Fei Chai”, the 1^st defendant, had given the substance to him and asked him to deliver it to someone.  He said he would receive a reward of $1000.  He also said he had no idea how the 1^st defendant had obtained the substance.

8.The 2^nd defendant admitted and accepted that at the material time he knew the substance found in his bag was ketamine.

9.The 2^nd defendant is 24 years of age.  He is single and at the time of the offence was living with his family in a public housing estate in Kwun Tong.  He attained lower secondary school education and thereafter worked as a decoration worker earning a monthly salary of $20,000.  However, at the time of the offence he was unemployed and it is submitted that due to the financial difficulties he was experiencing he agreed to the 1^st defendant’s offer to deliver the drugs for a reward of $1,000.  It is claimed he is not a drug abuser. 

10.The 2^nd defendant has a prior conviction for trafficking in dangerous drugs for which he was sentenced on 9 December 2010 to 32 months’ imprisonment.  He was discharged from prison custody in relation to this offence on 6 July 2012.

11.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 for large quantities of the drug further guidance has been provided in HKSAR v Sin Chung Kin [2013] 1 HKLRD 627 and HKSAR v Chow Yau Ching [2014] 2 HKLRD 639.

12.In the case of Hii Siew Cheng, the Court of Appeal provided guidelines for sentencing after trial for traffickers in ketamine and fixed a sentence of 14 years upwards for over a 1,000 g.  In accordance with the sentencing cases I have mentioned and given the circumstances of the case and the 2^nd defendant’s background, I adopt a starting point for 1.84 kg of ketamine of 16½ years’ imprisonment.  I reduce the starting point by 40 per cent for the 2^nd defendant’s plea of guilty and the circumstances on the papers which warrant a lenient view of the facts, and I sentence him to 9 years and 11 months’ imprisonment.

Mr Andrew Cheng, SPP of Department of Justice, for HKSAR

Mr Dick Lee, counsel instructed by Tam, Pun & Yip, for the 2^nd defendant