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DCCC 122/2009
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 122 OF 2009 D
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HKSAR
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G HUNG Yiu-cho G
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Coram: Deputy District Judge Dufton in Court
Date of Sentence: 18 June 2009
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Present: Mr Paul Stephenson, Counsel on Fiat for the Prosecution
Miss Cannise Chan assigned by DLA for the Defendant
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Charge: Trafficking in a dangerous drug(販運危險藥物)
K REASONS FOR SENTENCE K
L 1. The defendant stands convicted after trial of one charge of L
trafficking in 26.77 grammes of a powder containing 19.62 grammes of
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ketamine, 20 tablets containing 0.09 grammes of nimetazepam and 15
N tablets containing 1.69 grammes of ecstasy and 0.05 grammes of N
ketamine, contrary to section 4 of the Dangerous Drugs Ordinance,
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Chapter 134.
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2. Full particulars of the offence are set out in my reasons for
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verdict delivered on the 5th June 2009. In summary at around 00.53 on
R the 26th December 2008 the police intercepted the defendant and found R
from the right front pocket of the defendant’s pants two plastic bags
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containing the ketamine, 3 foil packs containing the nimetazepam and
T one resealable plastic bag containing the 15 tablets. The defendant was T
also found in possession of $31,900.
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3. In June last year the Court of Appeal in the Secretary for Justice
C v HII Siew-cheng [2008] 3 HKC 325 laid down new guidelines for C
trafficking in ketamine and ecstasy. Where the narcotic content is
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between 10 and 50 grammes sentence after trial falls within the range of
E 4-6 years imprisonment. 21.36 grammes of ketamine and ecstasy place E
this towards the lower end of that range.
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G 4. The defendant is 21 and has been before the court on three G
previous occasions. The last two occasions were in October and
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November last year when the defendant pleaded guilty to possession of
I drugs. The drugs concerned were different to the drugs in the present I
case, namely ice and cocaine. On each occasion the defendant was
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sentenced to probation. I have had the opportunity of reading the case
K papers, including the DATC and probation reports. I note the defendant K
was found not to be a drug dependant in October last year and urine tests
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taken by the probation officer, also in October, revealed negative for all
M drugs, including ketamine. M
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5. As the defendant has never been to prison before I called for a
O background report before passing sentence. The report is very detailed O
and reveals inconsistent accounts given by the defendant as to his drug
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history (see paragraph 4); relations with his family, especially his father
Q have been tense (see paragraphs 2, 5, 7 and 11); association with triad Q
peers (see page 1 under school and paragraph 7) and that he earned quick
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money from trafficking drugs in late 2008 (see paragraph 11).
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6. In passing sentence I take into account the defendant is still
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young. I have carefully considered everything said by Miss Chan. I am
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told that the content of the background report is agreed save that when the
C defendant denied to the probation officer trafficking in the drugs C
(see paragraph 5 of the report) he meant he did not sell them but would
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have shared them with his girlfriend. Miss Chan submits that this would
E amount to social trafficking and is therefore less serious. E
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7. As I said to Miss Chan at the time of the submission I reject this
G account now put forward by the defendant. This was not the evidence of G
the defendant at trial nor did he say this to the probation officer. I also
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note that in the urine tests taken since the defendant was placed on
I probation these were shown to be positive for ice and cocaine not I
ketamine (see paragraph 10 of the report).
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K 8. Further I do not agree that social trafficking is any less serious. K
The Court of Appeal in HII Siew-cheng specifically addressed this issue
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at paragraphs 98 and 99. This is not a case involving small quantities of
M drugs or one of a habitual abuser of ketamine who is caught in the act of M
supplying a close acquaintance such as a boyfriend or girlfriend who is
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also a regular consumer of drugs, which might well give rise to
O circumstances where a non-custodial sentence would be justified. The O
quantity of drugs possessed by the defendant is substantial for which as
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seen earlier falls within the range of 4-6 years imprisonment.
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9. I am satisfied the proper starting point after trial for 21.36
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grammes of ketamine and ecstasy is 4 years and 6 months imprisonment.
S I am satisfied the small quantity of nimetazepam adds nothing to the S
overall criminality of the trafficking charge.
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10. Miss Chan asks that I give credit to the defendant for admitting
C possession. Whilst this may have saved some court time I am satisfied in C
the circumstances of the case no reduction should be given in the
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sentence by reason of admitting possession. The defendant is sentenced
E to 4 years and 6 months imprisonment. E
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11. The defendant is in breach of two probation orders imposed in
G October and November last year in KCCC 5071/2008 and G
KCCC 6613/2008 for offences of possession of dangerous drugs.
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Pursuant to my powers under section 6(6) of the Probation of Offenders
I Ordinance, Chapter 298 the probation orders are discharged and the I
defendant re-sentenced to terms of 3 months imprisonment on each
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charge. The offence in KCCC 6613/2008 was committed whilst the
K defendant was on court bail for KCCC 5071/2008. I order the two K
sentences to be served consecutively. These are separate and distinct
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from the offence the defendant is now sentenced to 4 years and 6 months
M imprisonment and therefore consecutive sentences are appropriate. M
However taking into account the totality of sentence to be served by the
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defendant I order the sentences to be served concurrently. The defendant
O goes to prison for 4 years and 6 months imprisonment O
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R (D. J. DUFTON) R
Deputy District Judge
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