HKSAR v LIU CHIN KI

DCCC 844/2021

[2023] HKDC 58

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 844 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 2 charges of trafficking in dangerous drugs:-

(a)  Charge one: 33.4 grammes of a solid containing 28.96 grammes of cocaine.

(b)  Charge two: 3.31 grammes of a solid containing 2.64 grammes of cocaine and 7.89 g of a powder containing 6.84 grammes of ketamine.

Summary of facts

2.  The police intercepted the defendant at the staircase near to the unit of his home.

3.  Upon search, two transparent resealable plastic bags containing a total of 90 plastic bags of crack cocaine were found inside the right front pocket of the defendant’s shorts (Charge 1).

4.  The defendant admitted under caution he was employed for drugs trafficking because he was short of money.

5.  During a house search, the police further found:-

(i)  11 small packs of crack cocaine;

(ii)  11 small packs of ketamine;

(iii)  3 electronic scales;

(iv)  a pile of empty transparent resealable plastic bags;

(v)  HK$10,990.

6.  Under caution, the defendant claimed that those dangerous drugs were the leftover of his selling.

7.  A drug detection dog further found a small pack of cocaine inside a glass case on a computer desk.

8.  The defendant admitted that pack of dangerous drugs was also the remaining portion of his selling.

9.  In the record of interview, the defendant further said that:-

(i)  He had been trafficking dangerous drugs for a month.

(ii)  He was paid HK$700 each time.

(iii)  He was not a drug addict.

(iv)  He was instructed by Ah Sang to pack those dangerous drugs into 0.4 g in each small packs.

10.  The estimated street value of the dangerous drugs was about $65,000.

Mitigation

11.  The defendant is 27 years old and has a clear record come, he was previously a construction site worker, earning about $15,000 per month.

12.  However, since the onset of the pandemic, the defendant did not earn enough and had failed to pay rent for 2 months already.

13.  He met some undesirable friends and started to take drugs.

14.  His mother suffered from Systemic Lupus Erythematosus for about 20 years.  He wishes to be released as early as possible so that he can take care of her.

15.  There were a number of letters from his family, his previous employer and Mr Chan Kwok Kai JP.

16.  All of them tell me that he was a hardworking young man, but met some bad guys who led him into this unfortunate incident.

17.  The defendant also indicates his remorse for committing the present offence in his letter to this court today.

Sentence

18.  When I pass sentence on the defendant, I bear in mind of all the mitigating factors advanced by his counsel.

19.  There were 2 types of drugs involved in the present case, they were cocaine and ketamine.

20.  The applicable sentencing guideline for:-

(a)  Cocaine – Lau Tak Ming [1990] 2 HKLR 370;

(b)  Ketamine – SJ v Hii Siew Cheng [2009] 1 HKLRD 1

Charge 1

21.  It only concerned one type of dangerous drugs, that was cocaine.

22.  The narcotic content of 28.96 grammes of cocaine attracts a sentence of 6 years and 5 months’ imprisonment, I round down to 6 years and 4.5 months for easy calculation, given 1/3 discount, it reduces to 4 years and 3 months’ imprisonment.

Charge 2

23.  There were 2 types of dangerous drugs in charge two, they were cocaine and ketamine.

24.  The defence agrees that combine approach will result in a fair and reasonable sentence than the individual approach.

25.  According to the judgement of HKSAR v Islam SM Majharul CACC 67/2019, there were 7 steps to determine the proper sentence for mixed/cocktail drugs in trafficking (paragraph 27 refers) 

26.  Amongst the 2 types of drugs, cocaine is “more or most serious drug” in term of potency.  With the amount of 2.64 grammes of cocaine, it represents 28% of the total drugs, it is still significant in terms of the sentencing tariff for this quantity.  On this basis, the correct base drug is cocaine.

27.  For individual sentence for the 2 types of drugs:-

(a)  2.64 grammes of cocaine attracts a sentence of 2 years 10 months.

(b)  6.84 grammes of ketamine attracts a sentence of 3 years and 4 months.

28.  I now come to examine the results of the 3 tests by using cocaine as the base drugs.  Both the defence and the Prosecution agree to the following calculation:-

(a)  absurdity test: - the starting point is 4 years 9.8 months.

(b)  conversion test: - the starting point is 3 years 10 months;

(c)  the ratio test: - the starting point is 4 years 2 months.

29.  Taking all these matters into account, I increase the starting point of 2 years 10 months by one year, it arrives at 3 years 10 months.

30.  As in Charge 2, there are aggravating factors to enhance the starting point as it was stated in HKSAR v Choy Wing Sing [2022] HKCA 381:-

(a)  when trafficking 2 types of drugs, it caters for a wider market than one type of drug;

(b)  ketamine is commonly used with other drugs to prolong its effect;

(c)  the drugs were contained in packets for ready distribution to a large number of users.

31.  I consider that the starting point should be adjusted upwards for 5 months.

32.  The sentence of Charge 2 is now arriving at 3 years 15 months, given the 1/3 discount, it comes down to 2 years 10 months.  

Totality

33.  The defence suggested concurrent sentence.  I disagree.  As ketamine in charge 2 still account for a substantial amount (6.84 grammes)  and attracts a sentence of 3 years and 4 months.  

34.  The defendant said that the remaining portion of cocaine, that is 2.64 grammes in Charge 2, was the leftover of his selling.  That means the cache of cocaine found in his flat were the same batch/source of the cocaine found on the defendant’s person.

35.  The total quantity of cocaine in Charges 1 and 2 added up to 31.6 grammes.  The starting point is 6 years 7 months.

36.  The quantity of ketamine remains unchanged.

37.  The results of the 3 tests to use cocaine as the base drugs are as follow:-

(a)  Absurdity test :- starting point is 8 years 1 months 2 weeks;

(b)  Conversion test:- starting point is 6 years 10 months 3 weeks;

(c)  Ratio test :- starting point is 6 years 9 months.

38.  Taking all the matter into consideration, I would increase the starting point 6 years 7 months by 3 months to arrive at 6 years 10 months.

39.  The enhancement factor still applied, a sentence of 5 months to adjust upward, it arrives at 6 years 15 months, given 1/3 discount, it comes down to 4 years 10 months. 

40.  With all this information in mind, I order 7 months from charge 2 to run consecutively to charge 1.

41.  The sentence:-

(a)  Charge 1: 4 years and 3 months’ imprisonment;

(b)  Charge 2: 2 years and 10 months’ imprisonment, 7 months from charge 2 to run consecutively to charge 1;

(c)  Total sentence: 4 years and 10 months’ imprisonment.