HKSAR v. CHEUNG PUI LUN AND ANOTHER

DCCC1429/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1429 OF 2009

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HKSAR
v.
Cheung Pui-lun (D1)
Chan Cheung-wai (D2)

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Before: H H Judge Geiser

Date: 22 February 2010 at 10.08 am

Present: Mr Stewart Hau, SPP of the Department of Justice, for HKSAR
Mr Lee Kwan-wing of Lee & Co., assigned by the Director of Legal Aid, for the 1st defendant
Mr Kevin Ng of Kevin Ng & Co., assigned by the Director of Legal Aid, for the 2nd defendant

Offence: (1) to (3) Trafficking in a dangerous drug (販運危險藥物)

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Reasons for Sentence

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1. D1, you have pleaded guilty to two charges of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap.134 Laws of Hong Kong being Charges 1 and 3 on the indictment, and D2, one charge; that is, Charge 2 on the indictment.

2. The facts which you have both agreed are straightforward and indicate that at 5 past 6 in the evening of 5 November of last year,officers on Anti-dangerous Drugs Patrol saw the two of you acting suspiciously at the junction of Portland Street and Shantung Street. You were each searched and on you, D1, a plastic bag containing 27.24 grammes of a powder containing 21.67 grammes of ketamine wasfound under your underwear. This is the subject matter of the 1st charge.

3. On you, D2, two plastic bags containing 54.80 grammes of a powder containing 43.46 grammes of ketamine were found underneath yourunderwear. This relates to Charge 2.

4. A set of keys was seized from you, D1, and the police used them to conduct a search on your premises where inside a locked drawerof your bedroom a further three plastic bags containing 86.06 grammes of a powder containing 70 grammes of ketamine together withdrug trafficking paraphernalia were discovered. This relates to Charge 3.

5. I do not accept the assertions that either of you made to the police that the drugs found were for your own consumption. Further,I do not accept D2’s assertion made during the course of mitigation that the quantity of drugs found on you was for self consumption,although this has been retracted now at least to some extent.

6. D1, you are 18 years of age and, D2, 16. You both have clear criminal records and I have read the Background Reports prepared bythe Probation Service that I ordered. In addition, I have the benefit of a Detention Centre Training Centre suitability report inrelation to you, D2. In addition, I have read the letters of support put forward on each of your behalves by your respective counsel. However, the main mitigation is the plea of guilty that you have entered which is an indication of your respective remorse. I willgive each of you the appropriate discount in sentence to reflect this.

7. The sentencing guidelines for trafficking in ketamine can be found in Hii Siew Cheng [2008] HKCA 200. For trafficking in quantities of ketamine between 10 to 50 grammes the relevant starting point is 4 to 6 years’ imprisonment,and for quantities between 50 to 300 grammes, 6 to 9 years.

8. With regard to you, D1, first of all, on Charge 1 I take as my starting point a sentence of 4½ years’ imprisonment. I will discountthis by one-third to take account of your plea of guilty, coming to 3 years’ imprisonment on Charge 1.

9. With regard to Charge 3, I take as my starting point a sentence of 6 years’ imprisonment. Once again, this will be discountedby one-third to take account of your plea of guilty, coming to 4 years’ imprisonment on Charge 3.

10. Due to the question of totality of sentence, I order 1½ years on Charge 3 to run consecutively to the sentence on Charge 1, comingto an overall sentence of 4½ years’ imprisonment.

11. With regard to you, D2, I say straight away that I am well aware that the intake officer from the Correctional Services Departmenthas indicated that you would be suitable for a period of detention in a detention centre. I specifically informed you that evenin the event of a positive recommendation this did not mean that I would necessarily follow the recommendation. Trafficking in ketamineis extremely serious. Deterrent sentences must be imposed due to the increasing prevalence of this offence particularly amongstthe young.

12. In my view, a detention centre order is far too much of a soft option despite your relative youth and clear record. I decline tomake a detention centre order.

13. On Charge 2, I adopt as my starting point a sentence of 5 years’ imprisonment. This will be discounted by one-third to take accountof your plea of guilty, coming to 3 years 4 months’ imprisonment. I am prepared to discount this further by 4 months to take accountof the fact of your relative youth, arriving at a sentence of 3 years’ imprisonment.

H H Judge Geiser
District Judge