HKSAR v. KONG CHUEN FAI

DCCC 502/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 502 OF 2014

____________

HKSAR
v
KONG CHUEN FAI

____________

Before: HH Judge Dufton

Date: 25 September 2014

Present: Mr Phillip Ross, counsel on fiat, for HKSAR
Mr Alan So instructed by Susanna Wong & Co,
assigned by the Director of Legal Aid, for the defendant

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

REASONS FOR SENTENCE

1. Kong Chuen Fai you have pleaded guilty to one charge of trafficking in 27.11 grammes of a powder containing 14.05 grammes of ketamine,contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2. In summary in the afternoon of the 17 April this year the police intercepted you in the lobby of the Wong Tai Sin MTR Station. You were taken to the Police Facilities Room in the station where the police found inside your underpants one plastic bag insidewhich was two packets containing the ketamine. Under caution you said you were delivering the ketamine for a person called “KaHim”.

3. In passing sentence I have carefully considered everything said on your behalf by Mr So together with the mitigation letters writtenby you and your mother. I take into account that you are only 18 and have no previous convictions.

4. In Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 325 the Court of Appeal laid down guidelines for trafficking in ketamine. Where the narcotic content is between 10 and 50 grammes sentenceafter trial falls within the range of 4-6 years imprisonment.

5. Section 109A of the Criminal Procedure Ordinance, Chapter 221 provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court isof the opinion that no other method of dealing with such person is appropriate. Whilst this provision does not apply to traffickingin a dangerous drug, which is an excepted offence, a court must exercise great care before committing a young offender to prison.

6. Mr So tells me you are a drug addict and asks that I consider calling for a DATC suitability report. I am satisfied that a sentenceof DATC is not appropriate for an offence as serious as this.

7. I am not asked however to consider calling for a training centre suitability report. If you are drug dependant then you will mostlikely not be suitable for detention in a Training Centre. Further only in very rare cases will a training centre order be imposedfor trafficking in substantial quantities of dangerous drugs (see for example Secretary for Justice v Ko Fei Tat [2002] 4 HKC 59). I am satisfied this is not one of those very rare cases.

8. On a purely mathematical approach a starting point of not more than 4 years and 3 months imprisonment would be appropriate for 14.05grammes of ketamine. Taking into account you are only 18 and have no previous convictions I am satisfied a starting point of 4 yearsimprisonment is appropriate.

Own use

9. Mr So tells the court that your reward for delivering the drugs was a bit of the drugs for you to taste. Upon taking your furtherinstructions I am told this was one half of one packet, which is between 3-4 grammes of ketamine.

10. This is not accepted by the prosecution Mr Ross pointing out that although in a subsequent video interview you said you were consuming1-2 grammes of ketamine this was said in the context that all the drugs were for your own consumption which was different to whatyou told the police on arrest and today in court.

11. As indicated in court I do not accept part of the drugs were for your own use. Mr So having taken your further instructions tellsthe court that you do not wish to give evidence to support your claim.

12. Even if 3-4 grammes may have been for your own use I am satisfied that this would make little, if any difference to the sentence(seeHKSAR v. Wong Suet Hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34, where the Court of Appeal said that in most cases, the difference in sentence, if any, willbe slight). 3-4 grammes of ketamine would leave 10 grammes for trafficking, which under the guidelines in Hii Siew Chengattracts a starting point after trial of 4 years imprisonment.

13. Giving you full credit for your plea of guilty you are convicted and sentenced to 2 years and 8 months imprisonment.

(D. J. DUFTON)
DISTRICT JUDGE