HKSAR v. KOO CHUN HEI

DCCC 471/2023

[2024] HKDC 663

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 471 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to two charges in respect of this indictment, firstly, careless driving and secondly, trafficking in dangerous drugs, both offences committed on the same day, that is 27 August 2022.

2.  The trafficking in dangerous drugs concerns trafficking in a narcotic content of 6.06 grammes of ketamine and 4.76 grammes of cocaine.

3.  The case came to light as a result of a traffic accident on the Lok Shan Road in To Kwa Wan in Kowloon where the car that the defendant was driving collided with another car. The defendant, who was driving one of the cars, and a passenger of the car then fled. The police arrived and there was a search conducted on the car which the defendant had been driving and in the mat in front of the passenger seat a total of 40 plastic bags containing 4.76 grammes of cocaine and then another further 11 plastic bags containing 6.06 grammes of ketamine. Defendant had left his Hong Kong ID card, driving license and bank card in the compartments of the driver’s seat.

4.  Defendant was later located outside his residence and under caution he said that he was the driver of the vehicle at the material time. He was picking up somebody, a friend, and he fled away together with this friend. The defendant has admitted both that he drove the car carelessly in terms of the collision and also together with another unknown person was in possession of the dangerous drugs in question for the purpose of unlawful trafficking in them.

5.  The defendant’s background in mitigation is as follows. He is 21 years old, educated up to Form 4 and at the time of his arrest he was working or had been working in his parents’ seafood wholesale business. He has been in custody for over 19 months now. At the time of his arrest he was living at home with his parents and two siblings.

6.  In terms of mitigation, the defendant submits that the careless driving resulted in a 4 centimetre scratch on the rear bumper of the taxi, there were no injuries caused to anybody, so on that basis he says it is not a particularly serious case of careless driving.

7.  The more serious case I have to deal with of course is the case of trafficking in dangerous drugs. Defendant’s mitigation in respect of that is he says he was transporting the drugs with a male passenger, surname Tsang, and his role in this was to act as a driver. His mitigation is also that he provided the police with some details concerning the other man concerned but nothing has come from the provision of this information. It shows some willingness to assist the authorities and maturity by providing that information.

8.  Other mitigation is the defendant has family support, including the presence of members of his family here today and also the support is illustrated and set out in a background report which I had ordered on the defendant. Also in the background report, I am referred to the defendant’s, what is described as his deep remorse for his wrongdoing and acceptance of legal authority. These are mitigating factors as is the defendant’s comparative young age, only 21 at present. He also has only one minor previous conviction for gambling in a gambling establishment.

9.  I will deal with the approach to sentencing in cases such as these. In respect of the careless driving case, of course sentence is largely for the court, normally dealt with by way of a fine or a short sentence of imprisonment.

10.  I am concerned here with two drugs which would be in the form of what we describe as a cocktail of drugs. The first drug that I am concerned with is the drug cocaine. That is dealt with under the same guidelines as the drug heroin hydrochloride. That can be seen in the case of R v Lau Tak Ming in 1990 and also Attorney General v Pedro Rojas in 1994. For quantities of up to 10 grammes of the drug, the sentence should lie between 2 to 5 years’ imprisonment.

11.  In respect of ketamine, the sentencing guideline is between 1 to 10 grammes of ketamine should lead to a sentence of between 2 to 4 years’ imprisonment. I am dealing here with quantities of 6.06 grammes of ketamine and 4.76 grammes of cocaine.

12.  The court is also enjoined to consider the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD page 290, which enjoins the court to take a certain approach to sentencing in cases of trafficking in dangerous drugs. Firstly, it is to identify the relevant guideline bands applicable for the quantity concerned. I have already indicated what those guideline bands are. Secondly, to assess the defendant’s role and culpability based on the evidence, identify where in the relevant band the defendant is located bearing in mind that it might be necessary later to go outside the band, either above or below that figure, consideration of any aggravating and mitigating factors and then fixing an overall sentence that is fair, just and balanced.

13.  An aggravating factor in this case of course is that there is a combination of drugs and that is seen to be an aggravating factor generally.

14.  Where there is a combination of drugs there are two approaches that can be adopted. There is firstly the individual approach to sentencing and then there is the combined approach.

15.  The individual approach looks at each component drug and sentences by adding up those drugs. That is often an inappropriate method as it leads to a sentence that would be too high in the circumstances of the case.

16.  The combined approach, which is the other approach, involves the calculation of the applicable sentence for the most or more serious drug in terms of potency and then taking into account significant quantities of other less serious drugs and enhancing the sentence accordingly. The combined approach usually leads to better outcomes.

17.  The combined approach or the individual approach can be tested by three tests to check if a sentence is manifestly excessive. Those are the absurdity test, the conversion test and the ratio tests.

18.  Some calculations have been made in terms of the mitigation presented and submitted to me that the conversion test would lead to a starting sentence of some 4 years and 6 months’ imprisonment. The ratio test would lead to another starting point in approximately about the same position, 4 years and 6 months’ imprisonment.

19.  However, as I have already indicated, having assessed the position in the relevant band where the sentence may well lie, that is not the final determinant. I am also to look at other factors, such as mitigating factors, to arrive at an overall sentence that is fair, just and balanced.

20.  Bearing in mind the factors that have been set out and the position in the guideline band, one must also consider that the combination of drugs which would mean that the overall sentence which would range towards 4 years and 6 months’ imprisonment could be increased up to 4 years and 9 months’ imprisonment in this particular case. However, at the end of the day, the sentence that I will arrive on is a discretionary figure based on the arithmetical calculation but that is not the final and determining factor overall.

21.  Having considered this defendant’s position and considered the reports are consistent with his family support, in respect of the 2^nd charge I am going to take a starting point at 4 years’ imprisonment which mitigates the overall arithmetical calculation by some 9 months. The defendant is also entitled to a full one-third deduction from that on the 2^nd charge which would lead to a sentence of 32 months’ imprisonment or 2 years 8 months’ imprisonment.

22.  I must also sentence defendant on the 1^st charge. What I will do is simply impose a sentence of 7 days’ imprisonment and make that to be served concurrently with the other existing sentence. So the overall sentence will be one of 32 months’ imprisonment as a total sentence, as I say, both sentences to be served concurrently.