DCCC1304/2009
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO.1304 OF 2009
---------------------------
HKSAR
v.
CHUNG Ho-yin
---------------------------
Before: District Judge Douglas T.H. Yau
Date: 14 May 2010 at 11:50am
Present: Mr. Henry Hung, Senior Public Prosecutor for HKSAR
Mr. KHATTAK S.K. (Kelly Lam), instructed by M/S Anthony So & Co,
assigned by DLA, for defendant
Offence: Trafficking in a dangerous drug (販運危險藥物)
Reasons for sentence
1. The defendant faces one charge of trafficking in dangerous drugs.
He pleaded guilty, admitted to the amended summary of facts and was duly
convicted.
Facts
2. At about 1:33am on 24th September 2009, PC6105 (“PW1”) saw
a private vehicle which was parked outside no.168 Pik Wan Road, Lam Tin,
Kowloon. The defendant was sitting in the driver’s seat of the vehicle. Another
male was sitting in the front passenger sit. The engine of the vehicle was off at
that time.
3. PW1 approached the vehicle and requested the defendant to
alight from it for a search. PW1 noticed that the defendant was holding a few
transparent plastic bags in his hands at that time.
4. When PW1 opened the door of the vehicle, he saw the defendant
throw the said plastic bags out from the vehicle onto the floor.
5. PW1 seized those bags and found that they contained a total of
44 plastic bags each containing substances which were later confirmed by the
Government Chemist to be Ketamine.
6. The defendant alighted the vehicle. PW1 and PC54273 (“PW2”)
subdued the defendant immediately.
7. PW1 arrested the defendant. Under caution, the defendant said,
“Ah Sir, I bought those K Chai for my own consumption. It will be cheaper if I buy
1
more. Give me a chance. I and my friend pooled a fund to buy them. Each of us
pooled HK$1,000.
8. The male in the car was also arrested. Nothing of police interest
was found in the vehicle.
9. At 2:49pm on 25th September 2009, DPC523 (“PW3”) conducted
a video recorded interview with the defendant when he admitted under caution
that the male was his friend, that the defendant was the owner of the vehicle and
that he lived in Lei Muk Shue Estate.
10. The total narcotic contents found to be in possession of the
defendant was 19.44 grammes of Ketamine. Lastly, the defendant admitted
through the amended summary of facts that at all material times, the defendant
possessed exhibits P1 to P5 for the purpose of trafficking (see paragraph 11 of
amended summary of facts).
Previous convictions:
11. The defendant has a few previous convictions. The first one was
in 2001 when he was 17 years old for possession of dangerous drugs when he
was sentenced to the training centre. From my experience as a magistrate, this is
a relatively heavy sentence for a first offender of possession charges.
12. The 3rd, 4th and 5th convictions were respectively for possession
of dangerous drugs, possession of an identity card relating to another person,
possession of dangerous drugs and smoking or injecting dangerous drugs, all on
the same day in May 2004 when the defendant was sentenced to the drug
addiction treatment centre for all 4 charges.
13. The next conviction was in 2006 when the defendant was 22 for
possession of dangerous drugs and he was sentenced to 3 years’ probation, the
longest period possible for an order of such kind under s.3 of the Probation of
Offenders Ordinance, Cap. 298. The defendant however did not treasure the
chance given to him and was sentenced to the drug addiction treatment center
again in June 2007 for breach of the probation order.
Mitigation:
14. The defendant is 25, married with 2 daughters who are aged 5
and 3. Letters from his former employer indicate that the defendant had been
working at a recycling company since 2008 (that would be after the defendant’s
release from the DATC) as a supervisor earning $9,000 per month. I find it
slightly suspicious how someone who was just released from the DATC can find
such a well paid job in such a short time in the then financial climate, and as a
supervisor as well, which would normally indicate some seniority and
experience. Nevertheless, that is what is stated in the employment letters. The
managers also stated that they will re-employ the defendant upon his release
from prison.
2
15. The defendant’s wife informed the court via her letter that since
the birth of their 2nd daughter she had been suffering from depression. She
blames herself for putting too much pressure on the defendant causing him to
commit the present offence. She has expressed her determination to support her
husband by looking after their daughters and to eventually assist the defendant
in his rehabilitation.
16. The defendant also wrote a letter in his own mitigation, telling
the court that he had been thinking about his past and because of his stubborn
character he committed the present crime. He is deeply remorseful and consider
himself more mature now. His mother is suffering from ill health and he has to
look after his wife and his daughters. He realized the importance of looking after
the family and his daughters. He wishes to plan for a better future. He had sought
assistance from a priest of the church to help him rehabilitate. He will treasure
the chance to go back to his old job upon his release. He just wishes through the
letter to let the court knows about his latest thinking and to tell the court that he
is willing to face whatever punishment the court deems fit to impose.
17. Counsel for the defendant submitted 2 well known cases in relation
to sentencing on trafficking: Secretary for Justice v Hii Siew Cheng (許守城)
[2009] 1 HKLRD 1, CAAR7/2006 and the case of HKSAR v Wong Suet Hau &
another, CACC 366 and 487 of 2000.
18. Counsel relies on holdings (4) and (5) of Hii Siew Cheng to say that
there are exceptional circumstances to depart from the guidelines. Counsel seeks
to take the face value of the 2nd sentence in the holding where it is stated that
“The guidelines were intended to deter traffickers who frequented such
premises where young people were likely to be.” The Court of Appeal before that,
at paragraph 97 of the judgment said that, “we do not envisage the trafficker in
Ketamine or ecstasy who visits a discotheque or similar premises being given a
non-custodial sentence under any circumstances save where these are
exceptional in the extreme”. The Court then proceeded to expand on that to say
that the guidelines are intended to deter traffickers who frequent such premises.
The guidelines are not limited to those scenario.
19. The 2nd case of HKSAR v Wong Suet Hau was also referred to in Hii
Siew Cheng. After recognizing that in most trafficking cases, the defendant would
raise self-consumption as a mitigation factor, the Court of Appeal in Wong Suet
Hau set out factors that should be considered when the matter does arise. I do
not think that I need to consider this ground of mitigation at all, for the reason
that I find that there has not been established any basis that any of the drugs that
the defendant was found in possession of were for self-consumption.
20. When the defendant decided to plead guilty to the present
trafficking charge, he had impliedly admitted that what he said under caution at
scene to the police officer was untrue, that is to say his words that the drugs
were for his own consumption.
3
21. Furthermore, and more importantly, the defendant had explicitly
confirmed that at all material times, he possessed all the dangerous drugs for the
purpose of trafficking when he admitted to paragraph 11 of the amended
summary of facts. There is therefore no factual basis to find that any of the
dangerous drugs the defendant was in possession of that night was for his own
consumption. On the contrary, there is the defendant’s own admission that the
drugs were all for the purpose of trafficking to support the charge finding. The
defendant may well be a drug addict, but the relevance of self-consumption only
arises when the suggestion is that some of the drugs found to be in possession
and being subject matter of a trafficking charge were for the defendant’s own
consumption. That is not the case here and Wong Suet Hau does not apply.
Sentencing tariff
22. Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1,
CAAR7/2006 applies, and the indicated sentencing tariff for sentence after trial
for traffickers in ketamine of 10 to 50 grammes is 4 to 6 years’ imprisonment.
23. While not being unsympathetic for the suffering of the defendant’s
wife and daughters, for reasons set out above when dealing with the cases cited
by counsel for the defendant, and having considered the other grounds of
mitigation put forward by counsel for the defendant, I find that there is no
reason for me to depart from the guidelines. The total narcotic contents is 19.44
grammes of Ketamine, I find that an appropriate starting point is that of 54
months’ imprisonment. I will grant the defendant the full one third discount
upon his guilty plea and sentence him to 36 months’ imprisonment.
Douglas T.H. Yau
District Judge
4
DCCC1304/2009
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO.1304 OF 2009
---------------------------
HKSAR
v.
CHUNG Ho-yin
---------------------------
Before: District Judge Douglas T.H. Yau
Date: 14 May 2010 at 11:50am
Present: Mr. Henry Hung, Senior Public Prosecutor for HKSAR
Mr. KHATTAK S.K. (Kelly Lam), instructed by M/S Anthony So & Co,
assigned by DLA, for defendant
Offence: Trafficking in a dangerous drug (販運危險藥物)
Reasons for sentence
1. The defendant faces one charge of trafficking in dangerous drugs.
He pleaded guilty, admitted to the amended summary of facts and was duly
convicted.
Facts
2. At about 1:33am on 24th September 2009, PC6105 (“PW1”) saw
a private vehicle which was parked outside no.168 Pik Wan Road, Lam Tin,
Kowloon. The defendant was sitting in the driver’s seat of the vehicle. Another
male was sitting in the front passenger sit. The engine of the vehicle was off at
that time.
3. PW1 approached the vehicle and requested the defendant to
alight from it for a search. PW1 noticed that the defendant was holding a few
transparent plastic bags in his hands at that time.
4. When PW1 opened the door of the vehicle, he saw the defendant
throw the said plastic bags out from the vehicle onto the floor.
5. PW1 seized those bags and found that they contained a total of
44 plastic bags each containing substances which were later confirmed by the
Government Chemist to be Ketamine.
6. The defendant alighted the vehicle. PW1 and PC54273 (“PW2”)
subdued the defendant immediately.
7. PW1 arrested the defendant. Under caution, the defendant said,
“Ah Sir, I bought those K Chai for my own consumption. It will be cheaper if I buy
1
more. Give me a chance. I and my friend pooled a fund to buy them. Each of us
pooled HK$1,000.
8. The male in the car was also arrested. Nothing of police interest
was found in the vehicle.
9. At 2:49pm on 25th September 2009, DPC523 (“PW3”) conducted
a video recorded interview with the defendant when he admitted under caution
that the male was his friend, that the defendant was the owner of the vehicle and
that he lived in Lei Muk Shue Estate.
10. The total narcotic contents found to be in possession of the
defendant was 19.44 grammes of Ketamine. Lastly, the defendant admitted
through the amended summary of facts that at all material times, the defendant
possessed exhibits P1 to P5 for the purpose of trafficking (see paragraph 11 of
amended summary of facts).
Previous convictions:
11. The defendant has a few previous convictions. The first one was
in 2001 when he was 17 years old for possession of dangerous drugs when he
was sentenced to the training centre. From my experience as a magistrate, this is
a relatively heavy sentence for a first offender of possession charges.
12. The 3rd, 4th and 5th convictions were respectively for possession
of dangerous drugs, possession of an identity card relating to another person,
possession of dangerous drugs and smoking or injecting dangerous drugs, all on
the same day in May 2004 when the defendant was sentenced to the drug
addiction treatment centre for all 4 charges.
13. The next conviction was in 2006 when the defendant was 22 for
possession of dangerous drugs and he was sentenced to 3 years’ probation, the
longest period possible for an order of such kind under s.3 of the Probation of
Offenders Ordinance, Cap. 298. The defendant however did not treasure the
chance given to him and was sentenced to the drug addiction treatment center
again in June 2007 for breach of the probation order.
Mitigation:
14. The defendant is 25, married with 2 daughters who are aged 5
and 3. Letters from his former employer indicate that the defendant had been
working at a recycling company since 2008 (that would be after the defendant’s
release from the DATC) as a supervisor earning $9,000 per month. I find it
slightly suspicious how someone who was just released from the DATC can find
such a well paid job in such a short time in the then financial climate, and as a
supervisor as well, which would normally indicate some seniority and
experience. Nevertheless, that is what is stated in the employment letters. The
managers also stated that they will re-employ the defendant upon his release
from prison.
2
15. The defendant’s wife informed the court via her letter that since
the birth of their 2nd daughter she had been suffering from depression. She
blames herself for putting too much pressure on the defendant causing him to
commit the present offence. She has expressed her determination to support her
husband by looking after their daughters and to eventually assist the defendant
in his rehabilitation.
16. The defendant also wrote a letter in his own mitigation, telling
the court that he had been thinking about his past and because of his stubborn
character he committed the present crime. He is deeply remorseful and consider
himself more mature now. His mother is suffering from ill health and he has to
look after his wife and his daughters. He realized the importance of looking after
the family and his daughters. He wishes to plan for a better future. He had sought
assistance from a priest of the church to help him rehabilitate. He will treasure
the chance to go back to his old job upon his release. He just wishes through the
letter to let the court knows about his latest thinking and to tell the court that he
is willing to face whatever punishment the court deems fit to impose.
17. Counsel for the defendant submitted 2 well known cases in relation
to sentencing on trafficking: Secretary for Justice v Hii Siew Cheng (許守城)
[2009] 1 HKLRD 1, CAAR7/2006 and the case of HKSAR v Wong Suet Hau &
another, CACC 366 and 487 of 2000.
18. Counsel relies on holdings (4) and (5) of Hii Siew Cheng to say that
there are exceptional circumstances to depart from the guidelines. Counsel seeks
to take the face value of the 2nd sentence in the holding where it is stated that
“The guidelines were intended to deter traffickers who frequented such
premises where young people were likely to be.” The Court of Appeal before that,
at paragraph 97 of the judgment said that, “we do not envisage the trafficker in
Ketamine or ecstasy who visits a discotheque or similar premises being given a
non-custodial sentence under any circumstances save where these are
exceptional in the extreme”. The Court then proceeded to expand on that to say
that the guidelines are intended to deter traffickers who frequent such premises.
The guidelines are not limited to those scenario.
19. The 2nd case of HKSAR v Wong Suet Hau was also referred to in Hii
Siew Cheng. After recognizing that in most trafficking cases, the defendant would
raise self-consumption as a mitigation factor, the Court of Appeal in Wong Suet
Hau set out factors that should be considered when the matter does arise. I do
not think that I need to consider this ground of mitigation at all, for the reason
that I find that there has not been established any basis that any of the drugs that
the defendant was found in possession of were for self-consumption.
20. When the defendant decided to plead guilty to the present
trafficking charge, he had impliedly admitted that what he said under caution at
scene to the police officer was untrue, that is to say his words that the drugs
were for his own consumption.
3
21. Furthermore, and more importantly, the defendant had explicitly
confirmed that at all material times, he possessed all the dangerous drugs for the
purpose of trafficking when he admitted to paragraph 11 of the amended
summary of facts. There is therefore no factual basis to find that any of the
dangerous drugs the defendant was in possession of that night was for his own
consumption. On the contrary, there is the defendant’s own admission that the
drugs were all for the purpose of trafficking to support the charge finding. The
defendant may well be a drug addict, but the relevance of self-consumption only
arises when the suggestion is that some of the drugs found to be in possession
and being subject matter of a trafficking charge were for the defendant’s own
consumption. That is not the case here and Wong Suet Hau does not apply.
Sentencing tariff
22. Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1,
CAAR7/2006 applies, and the indicated sentencing tariff for sentence after trial
for traffickers in ketamine of 10 to 50 grammes is 4 to 6 years’ imprisonment.
23. While not being unsympathetic for the suffering of the defendant’s
wife and daughters, for reasons set out above when dealing with the cases cited
by counsel for the defendant, and having considered the other grounds of
mitigation put forward by counsel for the defendant, I find that there is no
reason for me to depart from the guidelines. The total narcotic contents is 19.44
grammes of Ketamine, I find that an appropriate starting point is that of 54
months’ imprisonment. I will grant the defendant the full one third discount
upon his guilty plea and sentence him to 36 months’ imprisonment.
Douglas T.H. Yau
District Judge
4