HKSAR v. Lee Chun Hei

DCCC 144/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 144 OF 2015

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Reasons for Sentence

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1.Defendant, you have been convicted after trial of trafficking in ketamine; purity of the drug is 92.4 grammes.

2.I will not repeat the facts of the case.  I made full reference to them in my verdict.  But, in short, the prosecution on 5 December 2014 had a team of officers on an anti-drug operation.  Two of the team saw the defendant, who aroused their suspicion.  They approached the defendant and their suspicions proved to be accurate.  One officer searched the defendant and found in one pocket five bags of ketamine; four large, one small.  In the other pocket, that same officer found 50 small, resealable transparent plastic bags, the ones often used for packing dangerous drugs.

3.I found, after trial, that the defendant did make an admission under caution, telling the officer that he had bought the ketamine for self-consumption and for others’ consumption.  The drugs were worth $14,800-odd, nearly $15,000.

4.The defence case was that the officers targeted him and conspired to frame him for trafficking that amount of ketamine.  He made no admission nor was he ever cautioned.

5.After trial, I convicted the defendant, rejecting his evidence as inherently improbable.  I accept the prosecution witnesses’ evidence as credible.

6.The defendant has four previous convictions, three of which are possession of dangerous drugs charges.  The first two convictions were in 2009 where he was fined $4,000 and then subsequently put on probation for 12 months.  His last conviction for drugs was in April 2014 where he was sentenced to 6 months’ imprisonment.  The defendant was released from prison in May 2014.  This offence was December 2014.

7.Defence counsel submitted that the defendant was a drug addict and in fact relapsed when he was released from imprisonment.

8.In mitigation, I have heard the defendant is 28 years old, is single and lives at home with his parents and elder brother.  He has employment as a warehouse storekeeper earning $15,000 a month.  He admitted to the police that he was in fact a drug addict.

9.In mitigation, counsel has urged the court to consider, firstly, what he said under caution; that he said he bought the drug for his own and others’ consumption, as well as consider that he had previous convictions relating to dangerous drugs.  This was submitted to support the mitigation that part of the ketamine was for his own use.  Amount was not quantified, but it was stated that a small quantity would be for his own use.

10.Defence counsel referred me to two authorities, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, as well as HKSAR v Wong Suet Hau [2002] 1 HKLRD 69.  These authorities were referred to to support the submission that I could give the defendant a discount from the appropriate starting point if I accepted that some of the ketamine was for his own consumption.

11.The Court of Appeal in that first authority, Chow Chun Sang, said at page 1126, paragraph 19:

“We are of the view that in drug-trafficking cases when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10 and 25 per cent of the basic starting point.”

I take from this paragraph that if all of the drugs was for self-consumption the maximum discount would be 25 per cent.

12.The authority also makes clear that if a sentencing court accepts that a part of the drugs was intended for the trafficker’s own consumption, the latent risk factor should not be ignored.

13.I accept the submission and after considering the circumstances of the case will reduce the starting point by 15 per cent.

14.The authority for sentencing ketamine traffickers is the Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323.  The relevant guideline is where the Court of Appeal says when 50 to 300 grammes of ketamine is trafficked, a starting point of between 6 to 9 years is appropriate.  Here, where 92.4 grammes is concerned, mathematically speaking a starting point of about 6 years and 6 months is appropriate.  Fifteen per cent from this starting point would be a discount of just under 12 months.  I will reduce that starting point by 12 months.

15.Defendant, please stand up.  After careful consideration of mitigation put forward, the facts of this case, previous convictions and the authorities produced to support mitigation, I sentence you for this offence to 5 years and 6 months’ imprisonment.