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B B
DCCC 1058/2012
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 1058 OF 2012 D
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E HKSAR E
v
F F
KONG Cho-man, Joe
G ____________ G
H Before : HH Judge Dufton H
Date : 12 April 2013
I Present: Miss Amanda Whitfort, counsel on fiat, for HKSAR I
Mr Ronny Leung, instructed by S.H. Chou & Co assigned by
J the Director of Legal Aid, for the defendant J
Offences: (1) Trafficking in a dangerous drug (販運危險藥物)
K (2) Failure to produce proof of identity on demand K
(未能在規定下出示身分證明文件)
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REASONS FOR SENTENCE
M M
N 1. The defendant stands convicted after trial of one charge of N
trafficking in 17.75 grammes of a solid containing 14.13 grammes of
O O
ketamine; 0.23 gramme of a powder containing 0.16 gramme of ketamine;
P and 0.17 gramme of a solid containing 0.14 gramme of cocaine, contrary P
to section 4 of the Dangerous Drugs Ordinance, Chapter 134 (charge 1).
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The defendant earlier pleaded guilty to a charge of failure to produce
R proof of identity on demand, contrary to section 17C(3) of the R
Immigration Ordinance, Chapter 115 (charge 2).
S S
T 2. In summary at approximately 9.18 a.m. on the 17 August 2012 T
the police saw the defendant standing by his private car GG 192 outside
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No. 60 Lok Shan Road in Hung Hom. The police approached the
C defendant and PC 6982 asked him to produce his identity card. The C
defendant said he had lost his identity card a week earlier but had not
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reported the loss. Suspecting that the defendant was in possession of
E dangerous drugs PC 6982 conducted a body search. PC 6982 found from E
a pocket of the defendant’s trousers a purple zip up holder, inside which
F F
was a re-sealable plastic bag and a piece of white paper, both containing
G ketamine. On a search of the car two re-sealable plastic bags were found G
under the carpet at the driver’s seat, one containing ketamine and the
H H
other cocaine. At the police station the defendant was found in
I possession of HK$26,140 and RMB100. I
J J
3. In passing sentence I have carefully considered everything said
K on behalf of the defendant by Mr Leung together with the letters written K
by the defendant and his mother. I take into account the defendant has a
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five year old son to take care of. I also take into account the defendant
M has no previous convictions for trafficking in dangerous drugs. M
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4. In Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 325 the
O Court of Appeal laid down guidelines for trafficking in ketamine. Where O
the narcotic content is between 10 and 50 grammes sentence after trial
P P
falls within the range of 4-6 years imprisonment. I am satisfied the
Q proper starting point after trial for 14.29 grammes of ketamine is 4 years Q
and 3 months imprisonment.
R R
S 5. The courts have equated for sentencing purposes cocaine with S
heroin (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).
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In R v Lau Tak-ming [1990] 2 HKLR 370 the Court of Appeal laid down
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guidelines for trafficking in heroin. The court said that the sentence upon
C conviction after trial where the quantity of narcotic is up to 10 grammes C
is between 2 and 5 years imprisonment. I am satisfied the proper starting
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point after trial for 0.14 grammes of cocaine is 2 years imprisonment.
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6. Adopting the ‘individual’ approach this would result in a starting
F F
point of 6 years and 3 months imprisonment, which clearly is excessive
G for if all the drugs, totalling 14.43 grammes, were cocaine sentence upon G
conviction after trial would fall in the range of 5 to 8 years imprisonment,
H H
with a likely starting point based on quantity alone of less than 5 years
I and 6 months imprisonment. I
J J
7. In my view the ‘combined’ approach to sentence is therefore
K appropriate. Whilst the most potent drug is cocaine sentence must reflect K
that by far the largest quantity is ketamine. In all the circumstances I am
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satisfied a starting point of 4 years and 9 months imprisonment is
M appropriate. Taking into account the defendant pleaded guilty to M
possession and admitted the majority of the prosecution case resulting in
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a very short trial I reduce the sentence by 9 months imprisonment. The
O defendant is convicted and sentenced to 4 years imprisonment. O
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8. For failing to produce proof of identity the maximum sentence is
Q a fine of $5,000. This charge is usually dealt with in the Magistracy by Q
way of a small fine. The defendant is convicted and fined $150 to be paid
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within 7 days. In default of payment he will serve 1 day imprisonment
S consecutive to the sentence on charge 1. S
T T
(D. J. DUFTON)
District Judge
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