HKSAR v. Chow Ying Kit
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DCCC 68/2015 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 68 OF 2015 -----------------------------------
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---------------------------- Reasons for Sentence ---------------------------- 1.The defendant pleaded guilty to one charge of Trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. Particulars are that he on 17th November 2014 unlawfully trafficked 2.37g of methamphetamine hydrochloride (commonly known as ICE) and 39.6g of ketamine at the lift lobby on 24th floor of Yuk Ping House, Long Ping Estate, Yuen Long. Outline of facts 2.The defendant was intercepted by two Police officers while using a key to open the door to Unit 2410 on 24th floor of Yuk Ping House on the charge date at around 9:58pm. The officers displayed their warrant cards but the defendant ignored them, put away the key and walked towards the lift lobby on the 24th floor. Two more Police officers joined in and the defendant eventually stopped at the lobby and agreed to be searched. 3.Upon search, the following were found inside the black nylon bag that the defendant was carrying. One plastic bag with the suspected drug of ICE inside; one plastic bag with 4 plastic bags inside each with the suspected drug of ketamine inside; one electronic scale, 10 empty plastic bags and one mobile phone with SIM card and SD card. 4.The defendant was arrested for trafficking in dangerous drugs. Under caution, the defendant said that the “K chai” was for selling to his close friends as well as for his own consumption. In the subsequent cautioned video recorded interview, the defendant said that “K chai” means ketamine, that the ICE found on him was for his own consumption; and that he would consume 0.5g each time. 5.The value of the ICE and ketamine found on the defendant is estimated at $958 and $7,266 respectively. 6.At paragraph 6 of the summary of facts, which was read out in open court and admitted to by the defendant after he had entered a plea of guilty, it is stated that at the time of the incident, the defendant possessed the dangerous drugs found on him for the purpose of illegal trafficking. Criminal records 7.The defendant has 5 previous convictions with one relating to dangerous drugs back in 2000. Mitigation 8.The defendant is 32, single, living with parents at the charge address. His father is 60, working as a station supervisor at minibus station, while his mother works as an assistant in the kitchen. The defendant is a transportation worker, earning about $8,000 per month. He does not need to support his family. 9.The defendant had been sentenced to the Drug Addiction Treatment Centre once in 2003. The defendant had not touched dangerous drugs after his discharge, until 2013 when his girlfriend left him. The defendant met up with his old friends and resumed his drug use. The defendant has a hot temper, that was why in 2013 he was involved in a violent crime and he jumped bail and was arrested and sentenced to 6 months in jail. After his release, he continued to mingle with bad peers. 10.After his present arrest, the defendant made full and frank disclosures, regretted that he will be facing a long sentence. The defendant will not touch dangerous drugs again. 11.It is the defendant’s case that most of the ICE and about half of the ketamine was for his self-consumption. Ms. Fung for the defendant referred to the case of HKSAR v Chow Chun Sang, CACC 135/2011 to support the proposition that a reduction of between 10% to 25% should be granted on the basis of partial self-consumption. 12.Ms. Khubchandani relies on the case of HKSAR v Yip Wai Yin & Another [2004] 3 HKC 367 to suggest that a combined approach should be adopted in the present case. It is Ms. Khubchandani’s submission that the discount for self-consumption can be granted but not at the highest suggested figure of the range. Sentencing Tariff 13.The sentencing tariff for methamphetamine hydrochloride was laid down in the case of Attorney General v Ching Kwok-hung [1991] 2 HKLR 125. The tariff for the possession for unlawful trafficking or trafficking in methamphetamine hydrochloride of up to 10 grammes is 3 to 7 years’ imprisonment. 14.The sentencing tariff for ketamine is found in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006. The sentencing range for traffickers in ketamine of 10 to 50 grammes is that of 4 to 6 years’ imprisonment. 15.Ms. Fung helpfully referred me to the case of HKSAR v Chow Chun Sang, CACC 135/2011. There the Court of Appeal stated that in drug trafficking cases where the trafficker intended all or part of the trafficked drugs for self-consumption, the resulting level of discount should be within 10% to 25% of the base sentence, depending on each individual case. The court should take into consideration the total quantity of drugs involved, the proportion being for self-consumption, the nature of the drugs, whether the person was trafficking for money, whether the trafficking was organized and well planned and the defendant’s background as well as criminal records. 16.It is the defendant’s case that most of the ICE was for his own consumption while around half of the ketamine was for his self-consumption. The defendant intended to sell some of the ketamine or ICE to his close friends. The defendant has one previous conviction for smoking and/or injecting dangerous drugs back in 2000. There was no apparatus for the consumption of ICE or ketamine found on the defendant’s person or at his place of residence. There is no evidence of the defendant being part of an organization of drug traffickers. The defendant immediately told the Police officers at the time of his apprehension that the ICE was for his own consumption and that half of the ketamine was for sale to his close friends and half for his own use. 17.Given that there are two different drugs involved in the present case, applying the case of HKSAR v Yip Wai Yin [2004] 3 HKC, the court should consider first whether a combined approach is appropriate. In our present case, I find that the combined approach will allow me to sentence fairly, realistically and in a commonsense manner. 18.Accordingly, the more serious drug being ICE (2.37g), I take as the appropriate sentence 48 months’ imprisonment. This is an application of the tariff sentence referred to above. Given it is the defendant’s case that most of this drug was for his own consumption, bearing in mind the above referred to case of Chow Chun Sang, I will grant the defendant a 20% reduction on this sentence, leading to 38 months’ imprisonment. 19.An upward adjustment is then to be made to take into account the significant amount of ketamine (39.6g). For this amount, under the circumstances and bearing in mind that on its own this quantity of ketamine would have attracted a starting point of 66 months’ imprisonment, I find that an upward adjustment of 22 months’ imprisonment is appropriate. When adopting this upward adjustment, I have already taken into consideration that about half of the ketamine was supposed to be for the defendant’s self-consumption. 20.I find that there is no aggravating or mitigating circumstances to further adjust this sentence other than the defendant’s guilty plea. 21.This makes the overall starting point for the combined drug of 60 months’ imprisonment. The defendant is therefore sentenced to 3 years and 4 months’ imprisonment after plea.
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Cases cited in this judgment