HKSAR v. CHAN CHI WAI

DCCC 864/2018

[2019] HKDC 805

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 864 OF 2018

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REASONS FOR SENTENCE

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Introduction

1.  The defendant is convicted upon his own guilty plea of a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of Cap. 134.  The dangerous drugs involved were 6.37 grammes of cocaine and 2.45 grammes of ketamine.

Facts

2.  At about 2:35 am on 18 June 2018, the defendant and one Mr Leung were on board a private car with registration number VH9414 (the “Car”) parked outside the Bus Terminus at Kwai Shing East Estate, Kwai Chung. The defendant was on the front passenger’s seat whilst Mr Leung was on the driver seat. The police intercepted the defendant and Mr Leung, and searched the Car. A cloth bag was found concealed underneath the gearbox cover at the front panel of the Car. The cloth bag was found to contain the following items:

(a) one resealable plastic bag containing 35 transparent resealable plastic bags containing a total of 7.57 grammes of a solid containing 6.37 grammes of cocaine (“E1”);

(b) another resealable plastic bag containing 5 transparent resealable plastic bags containing a total of 4.10 grammes of a solid containing 2.45 grammes of ketamine (“E2”); and

(c) another resealable plastic bag containing 14 empty transparent resealable plastic bags.

3.  Under caution, the defendant admitted that E1 and E2 belonged to him. He claimed that he bought E1 and E2 for self-consumption.

4.  At the time of arrest, the defendant had in his possession 3 mobile phones and HK$12,750 cash.

5.  The estimated street values of E1 and E2 were HK$6,440 and HK$1,286 respectively.

Previous record and antecedent

6.  The defendant has two previous convictions, one being trafficking in dangerous drugs and the other blackmail. For those convictions, he was sentenced to detention at a Training Centre on 28 June 2013.

7.  The defendant was born in April 1999. He is now 20 years old. He had received education up to Form 1 level.

Mitigation

8.  Ms Catherine Wong, counsel for the defendant, relied on her written Mitigation Skeleton Submissions dated 11 June 2019.

9.  Ms Wong submitted that the defendant had a poor family background which made him not able to pursue the right path in life. A mitigation letter from the defendant was submitted to the court asking for the court’s leniency.

10.  Ms Wong referred me to R v Lau Tak-ming and others[1] and AG v Pedro Nel Rojas[2] for the sentencing guideline for trafficking in cocaine, and Secretary for Justice v Hii Siew Cheng[3] for the sentencing guideline for trafficking in ketamine. She invited the court to consider using the conversion test and convert concaine into ketamine.

11.  Ms Wong also submitted that “a small amount of the drug was for (the defendant’s) own self-consumption” and referred this court to HKSAR v Chow Chun Sang[4]. Ms Wong frankly submitted that she was not saying that a significant proportion of the drugs was for the defendant’s own consumption. She also frankly submitted that the urine test conducted a few days after the defendant’s arrest gave negative result.

Sentence

12.  This case involved two kinds of dangerous drugs. For trafficking in 6.37 grammes of cocaine, applying the sentencing guideline set out in Lau Tak-ming and Pedro Nel Rojas I consider a starting point of 3 years and 9 months’ imprisonment appropriate. For trafficking in 2.45 grammes of ketamine, applying Hii Siew Cheng the starting point would have been 2½ years’ imprisonment. The “individual approach” would have resulted in a starting point of 75 months’ imprisonment.

13.  I am of the view that in imposing sentence, the “combined approach” is to be preferred: HKSAR v Yip Wai Yin and Anor[5]. In this connection, paragraph 9(3) of the judgment in HKSAR v Yip Wai Yin and Anor reads:

“9(3) The methodology of this ‘combined’ approach is first to calculate the applicable sentence for the more or most serious drug, and then adjust the sentence upwards to take into account significant quantities of the other (less serious) drugs ... By ‘the more or most serious drug’, we are not referring to quantities but to seriousness in terms of the potency of the drug. Thus, for example, where significant quantities of Ice and Ketamine are found in a cocktail, the more serious drug is taken to be Ice even in terms of quantity, it may be less than the Ketamine.”

14.  The whole quantity of the drugs seized was 8.82 grammes. On the basis that cocaine is the most serious/potent drug in the present case and applying the “absurdity test”, it would have resulted in an overall starting point of 4½ years’ imprisonment.

15.  Applying the “conversion test”, 2.45 grammes ketamine would have attracted 2½ years’ imprisonment which would have resulted from trafficking in about 2 to 2.2 grammes of cocaine. If one were to add the converted quantity of 2 grammes to the 6.37 grammes of cocaine, one would arrive at a total of 8.37 grammes of cocaine which would have attracted a starting point of 4 years and 5 months’ imprisonment.

16.  Applying the “ratio test”, on the basis that cocaine accounted for 0.7222 in weight of the total quantity seized (6.37/8.82) and ketamine accounted for 0.2778 in weight of the total quantity seized (2.45/8.82), the total sentence should be approximately 51½ months’ imprisonment made up as follows:

Dangerous drug	Sentence assuming 8.82 grammes of single drug	Ratio	Sentence
Cocaine	54 months	0.7222	39 months
Ketamine	45 months	0.2778	12.5 months
		Total:	51½ months =========

17.  In Chan Yuk-leong[6], the Court of Appeal observed that the seizure of two or more types of dangerous drugs at the same time, even though separately packed and not in a prepared mixture, may lead to two possible aggravating features. One is the ability of the trafficker to cater to a wider market. The more important feature is the effect on users of combinations of dangerous drugs.

18.  In light of the aforesaid, I adopt a starting point of 3 years and 9 months’ imprisonment for trafficking in 6.37 grammes of cocaine, and make an upward adjustment by 6 months for the 2.45 grammes of ketaime. It results in a starting point of 51 months’ imprisonment.

19.  Regarding the issue of self-consumption, I have considered HKSAR v Wong Suet Hau[7], HKSAR v Chow Chun Sang[8] and HKSAR v Liu Ming Sze[9]. In Liu Ming Sze, it was held that the range of discounts suggested in Chow Chun Sang was not relevant unless the dangerous drugs for self-consumption were to be regarded as a “significant proportion” of the dangerous drugs in which the offender unlawfully trafficked. However, the prosecution has no objection that a small amount of the subject drugs was for the defendant’s own consumption. Because of that, I will reduce the starting point by 3 months to 48 months’ imprisonment.

20.  I will give the defendant one-third discount on sentence in light of his timely indication of guilty plea. That brings his sentence to 32 months’ imprisonment.

21.  The defendant was sent to a Training Centre in June 2013 where he was given vocational training and education. He was under several years’ statutory supervision after his release. Those training and supervision were supposed to help the defendant turn over a new leaf. Unfortunately, he committed the present offence despite the training and supervision. I refuse to give him any further discount on the ground that he had a poor family background.

22.  There being no other valid mitigating factors justifying further reduction in sentence, the defendant is sentenced to 32 months’ imprisonment.