HKSAR v. LUI KA KIT AND OTHERS

HCCC 450/2017

[2018] HKCFI 1709

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 450 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Mr Lui, stand up please.

You were arrested on 9 March 2017 along with two others who have, as you know, already been dealt with. On 11 March 2017, you appeared before the Eastern Magistrates’ Court. At that time, you did not enter a plea. It took several hearings and a number of changes of representation with the other defendants before you all pleaded guilty on 11 December 2017.

This was not an opportunist venture. It was a fairly sophisticated operation which you agreed to carry out along with the 2nd and 3rd defendants. Although, as I had said previously, it was D3 who actually rented the room and it was D3 who lied to the receptionist so that you could all have access to the room. And, of course, it was D3 who was currently serving a sentence for trafficking in dangerous drugs when I dealt with him for this matter, which he had committed just a month before you were all in that hotel room dealing in drugs, for him once again, and apparently making a large profit.

You certainly between you had all of the paraphernalia available to you to divide up the drugs in your possession into small enough quantities to sell on in what I presume was intended to be a quick operation. And it is one that I am seeing time and time again at present, the use of rather upmarket hotel rooms by young people to distribute drugs. But you were observed by the authorities and you were found with the drugs, the equipment and a notebook at the scene. Your fingerprints and the 3rd defendant’s fingerprints were found within the room itself, and the 2nd defendant’s fingerprints were found on the notebook. There was also $16,120 in cash on the table. That was without taking into consideration the $80,000 worth of drugs that were still to be sold on by you all.

As is your right, you chose not to say anything on arrest or offer any explanation in interview. There is therefore no evidence in respect of the facts of this case, before me, which suggests that my approach in sentencing you should be differentiated save for the greater role apparently played by the 3rd defendant, although of course I note the difference in age, although it was not all that great as you were all quite young. You were all equally guilty of this offence and of brazenly dealing in drugs.

As I have said, the 2nd and 3rd defendants were older than you and you were just 17 at the time of the offence, and I do, as Mr Chung has urged upon me, accept that you were led on by others whom you had known at school and who were four years above you. I have heard everything that he has said on your behalf on the last occasion and of course what he has reminded me of now today.

Mr Lui, the charge you all face involves two different types of drugs, ketamine and cocaine. Ketamine falls to be dealt with under the guidelines in HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1. For between 50 and 300 grammes the starting point after trial should be between 6 and 9 years. For 100.83 grammes, it would attract a starting point of sentence of 6 years and 7 months.

The cocaine falls to be considered under the guidelines in HKSAR v Lau Tak Ming [1990] HKLR 370. For between 10 and 50 grammes, the starting point after trial would be in the range of 5 to 8 years. And for 16.69 grammes, the starting point is therefore 5 years and 6 months.

As I said previously, if I considered those two drugs together, that would make a total sentence of 12 years and 1 month, which clearly far exceeds the criminality of your offending. I have therefore taken into account the decision of the Court of Appeal in Chan Yuk Lun (CACC 318/2013) and have adopted the ratio test, rather than the conversion test, as being the approach most favourable to you in these circumstances.

Under that test, the ketamine represents approximately 85.8 per cent of the total quantity of drugs and the cocaine represents approximately 14.2 per cent. If the total quantity of drugs, and that is the two together, which is 117.52 grammes, were ketamine, then the sentence it would attract is 81 months. 85.8 per cent of that sentence is 69.4 months. Whereas the sentence for 117.52 grammes of cocaine, had it all been cocaine, has a starting point of 117 months. 14.2 per cent of which is 16.7 months. That is a total of 7 years and 3 months.

So the starting point which I adopt is therefore one of 7 years and 3 months’ imprisonment as that is the most favourable to you on the calculation I have described. I have taken your good character into account and everything which has been said on your behalf by Mr Chung and I am prepared to give you a full one-third discount for your plea. Your sentence was adjourned to give you an opportunity to have other matters considered, unfortunately for you they have not borne fruit and therefore you will go to prison for 4 years and 10 months.