HKSAR v. LAW HO YIN

DCCC 787/2023

[2024] HKDC 1087

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 787 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty before me to one count of trafficking in dangerous drugs and admitted the Summary of Facts.

2.  The Summary of Facts is as follows. 

The Facts

3.  At around 10:40 pm on 7 January 2023, a team of police officers, acting on intelligence, gained entry into Flat E, 11th Floor, Block 1, Beneville, No 18 of Tuen Kwai Road, Tuen Mun.

4.  The defendant was inside the flat.  Now, on the wall of the living room inside this flat there was a basket mounted.  Inside the basket, there was a popcorn resealable bag.  In a search carried out by the police officers of the contents, the police found the following:

(a)  A total of 122 resealable plastic bags containing a total of 38.99 grammes of a solid containing 33.18 grammes of cocaine;

(b)  another resealable bag containing electronic balance and a scissor blade, 0.02 grammes of a solid containing traces of cocaine was found on the blade;

(c)  2 resealable plastic bag containing a total of 13.28 grammes of a solid containing 10.5 grammes of ketamine.

5.  When searched, the defendant was found to have HK$6,502 cash with him.

6.  The dangerous drugs found by the police had a street value of HK$42,710 at the material time.

7.  The defendant was arrested for trafficking in dangerous drugs and under caution, he said to the police that all the drugs belonged to him.

8.  When the defendant was subsequently interviewed, whilst admitting that he had dealt with the drugs by, among others, grinding the drugs, weighing them and then repacking them, he claimed at the same time that the drugs were solely for his own consumption.  He further said that he repacked the drugs in smaller bags because he wanted to limit his own intake.

9.  Lastly, he told the police in the interview that he has been occupying the flat since May or June 2022.  The monthly rental for the place was HK$11,500.

10.  Now this afternoon, Mr Sheung, counsel for the defendant, confirmed that the defendant no longer maintains the claim of self-consumption.  He accepts fully that the drugs found by the police were all for the purpose of trafficking.

Defendant’s Background

11.  Defendant is a young man who was only 22 years of age at the time of the offence.  He left school after finishing Form 6, and  had worked at a gas station in 2021.  He became a part-time warehouse worker at the airport in 2022, a job from which he earned around HK$10,000 per month.  It was said by his counsel that he kept that job until the end of 2022. He had since been unemployed. 

12.  He is single and lives with his parents at the material time.  He has no previous conviction.

13.  In mitigation, his counsel puts before me letters from both his mother and his elder sister.  The latter has been suffering from various health problems and needs constant care.  In both of these letters, the defendant has been described as a very positive young man.  His involvement in the present case was said to be wholly out of character.  There is also a letter written by the defendant himself  in which he expressed full remorse for his behaviour.

Sentencing Principles

14.  With the Court of Appeal’s guidance in the most recent authority, HKSAR v Lee Ming Ho [2024] HKCA 150, there are various steps, set out in an earlier case, HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, which the court has to follow in arriving at the proper sentence.  The first step is to assess the gravity of the offence and identify the applicable guidelines according to the drugs seized. 

15.  In the present case there are two types of drugs, namely cocaine and ketamine.  The sentencing guidelines for cocaine are to be found in the case of R v Lau Tak Ming [1990] 2 HKLR 370, which were transplanted for use in cocaine trafficking cases, see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.

16.  Now according to the guidelines the starting point for trafficking between 10 to 50 grammes of cocaine should be between 5 and 8 years’ imprisonment.  Mathematically speaking, the total weight of 33.18 grammes of cocaine alone will attract a starting point of 6 years and 9 months’ imprisonment.

17.  The sentencing regime for trafficking in ketamine is governed by guidelines laid down in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  The starting point for trafficking in 1 to 10 grammes of ketamine, according to the guidelines, will be between 2 to 4 years’ imprisonment. Mathematically speaking again, 10.5 grammes of ketamine were will therefore attract a starting point of 4 years’ imprisonment.

18.  Different approaches to sentencing arise when there is a cocktail of drugs involved.  There is the combined approach and there is also the individual approach.  In the present case, in my view, the combined approach is clearly the better and the fairer approach to be used. 

19.  With that in mind, since the most serious, and largest quantity of, narcotics here is cocaine, I shall take that as the base drug (for which the sentence of 6 years and 9 months is the base starting point).  To that, I shall add 6 months to reflect the fact that there is also the 10.5 grammes of ketamine.

20.  In arriving at the above figure, I have cross-checked with the calculations set for various tests, including the absurdity test, the conversion test, and the ratio test. 

21.  On the above basis, I have come to a starting point of 7 years and 3 months’ imprisonment.

22.  The next step is for the court to assess the defendant’s role and culpability based on the evidence before me.  Here, I only see evidence showing the defendant to be a  storekeeper and possibly a courier.  And as there is nothing else before the court to show that he has played a higher or more serious role in the drug industry, nor is there any aggravating factors, I do not see a need for increasing the starting point. 

23.  After that, the court has to determine whether there are mitigating factors. The defendant had indicated his guilty plea at the earliest opportunity and is therefore entitled to a full discount of one-third. 

24.  In addition to that, given the age of the defendant, his clear record and otherwise good character, I shall exercise my discretion and give him an extra 2 months discount. 

25.  With the aforesaid discounts, the sentence will be reduced to one of 4 years and 8 months’ imprisonment.

26.  The last step, according to Yusuph, is for the court to stand back and look at the overall sentence to ensure that it is fair, just, and balanced. 

27.  Now, apart from the two matters which I have considered as valid mitigations, I do not find anything else which would have led me to further reduce the sentence.  Harsh as a sentence like this may be for a young man of the defendant’s age, there is nothing unfair, imbalanced, or unjust about it, and that is what the defendant has to serve.