HKSAR v. YAU CHEUK NANG, RAYMOND

HCCC 47/2023

[2023] HKCFI 2796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 47 OF 2023

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

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COURT: The defendant faced one count of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Chapter 134. He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

Summary of Facts Admitted by the Defendant

The facts disclose that police officers went to Superluck Industrial Centre Phase 1 upon receiving a report that suspicious persons were there and defendant was seen coming out of a lift after another male. The defendant became nervous upon seeing the police and stepped backwards. Police heard the sound of something drop onto the floor of the lift and found that it was a white plastic bag. The defendant admitted the white plastic bag belonged to him.

Inside the white bag, the following were found:

(a)  A plastic bag containing 20 plastics bags containing a total of 61.4 grammes of a solid containing 49.5 grammes of ketamine;

(b)  a cigarette box containing a resealable bag containing 45 plastic bags containing a total of 7.10 grammes of a solid containing 5.82 grammes of cocaine;

(c)  a box containing resealable bags containing a total of 138 grammes of a solid containing 107 grammes of ketamine;

(d)  a paper box containing 21 resealable bags containing a total of 12.9 grammes of a solid containing 10.8 grammes of ketamine; and then

(e)  a resealable bag containing 81 resealable bags.

Upon body search, the following were found on the defendant’s person:

(a)  Two plastic packets containing two plastic bags containing a total of 13.99 grammes of cannabis in herbal form in the front right trousers pocket;

(b)  a resealable bag containing 0.11 grammes of a solid containing 0.1 grammes of cocaine and four resealable bags containing 0.45 grammes of a solid containing 0.37 grammes of cocaine in his rear left trousers pocket;

(c)  a resealable bag containing 0.13 grammes of a solid containing 0.1 grammes of cocaine in his front left trousers pocket;

(d)  two mobile phones;

(e)  two lighters;

(f)  cash of HK$129.90

The street value of the various dangerous drugs seized were as follow: ketamine, $116,977; cocaine, if it is in powder form, $7,907, in crack form, $10,454; cannabis in herbal form, $2,742.

The defendant was arrested for trafficking in dangerous drugs. Under caution, the defence said all the drugs found on his person were to be consumed with Ah Chu who was with him and the items in the plastic bags were taken by him from a flat on 8^th floor of Superluck.

The defendant admitted that at all material times, he knowingly possessed the dangerous drugs seized in this case for the purpose of unlawful trafficking.

Background and Mitigation

According to the antecedents statement, the defendant was born in the Mainland in November 1997, so he is now almost 26 years of age. He is single and educated up to Form 4 level. He worked as a clerk since 2013 and has a clear record. He claimed, according to the form or the antecedents statement, that he started taking cocaine when he was 12.

Defence counsel, Mr Adonis Cheung, informed this Court that the defendant did not start taking dangerous drugs when he was 12 but when he was 22. So Mr Cheung also gave this Court more information regarding the defendant. The defendant worked as a clerk since 2013, earning around $15,000 per month. He committed the offence for financial gain. Mr Cheung also emphasised the fact that the defendant has a clear record and had pleaded guilty at the committal stage.

As more than one drug was involved, Mr Cheung assisted this Court by setting out the sentencing guidelines for ketamine, cocaine and cannabis and then the result of the three tests, that is the absurdity test, the conversion test and the ratio test. As the amount of cannabis is such that Mr Cheung submitted to this Court can consider either making an upward adjustment in the conversion test or making a discretionary adjustment in the case of the ratio test because the amount is so small.

So the result shown for the three tests are 9 years and 8 months, 7 years and 11 months and 2 weeks, and 85.91 months respectively. The prosecution agrees with the calculation.

Mr Cheung submitted that the result of the conversion test with an upward adjustment would be the sufficient and the most fair, to reflect the culpability of the defendant in dealing with these drugs.

My Consideration of the Sentence

Trafficking in dangerous drugs is a serious offence. A person convicted of this offence on indictment is liable to a fine of $5 million and life imprisonment. For the trafficking of more than one kind of drugs, there are two sentencing approach open to the sentencing judge, that is the individual approach or combined approach. So I will first look at the starting point for each drug.

First, cocaine. The cocaine involved here is 6.39 grammes. So according to the case of Attorney General v Pedro Nel Rojas, the sentencing guideline for heroin is applicable for the trafficking of cocaine. So according to the case of Lau Tak Ming, up to 10 grammes the starting point is 2 to 5 years.

And then the second lot is ketamine. The ketamine involved here is 167.30 grammes. So according to the case of Secretary for Justice v Hii Siew Cheng, the trafficking of 50 to 300 grammes, the starting point is between 6 to 9 years.

And the third one is the cannabis in herbal form. The cannabis involved here is 13.99 grammes. As the guideline in Tuen Shui Ming are for trafficking in cannabis resin and for a much higher quantity, I agree with Mr Cheung’s submission that the sentence is at my discretion.

Now, I will now consider the appropriate sentence by incorporating the seven-step approach stated in the case of Islam S M Majharul and the six-step approach in Herry Jane Yusuph.

(1)  So one of the three drugs, cocaine, was the more serious although the quantity of ketamine was higher. So I will use cocaine as the base drug, the amount of cocaine involved here is 6.39 grammes.

(2)  The appropriate starting point for 6.39 grammes of cocaine is between 2 to 5 years. That is according to Lau Tak Ming and I am of the view that 4 years would be appropriate.

(3)  More than one drug was involved and the largest quantity is ketamine. Just the ketamine alone would attract a starting point of 7 years and 5 months and with the three tests, I agree with Mr Cheung that the result of the conversion test, that is 7 years 11 months and 2 weeks, with upward adjustment for the cannabis is fairer. Bearing in mind that the defendant’s role is that of a courier, I am of the view that a notional after trial starting point is 8 years.

(4)  As more than three types of drugs are involved, I will enhance this starting point by 3 months.

(5)  There are no aggravating factors to further enhance this starting point.

(6)  The defendant pleaded guilty at the earliest available opportunity and is therefore entitled to the full one-third discount.

(7)  The overall sentence is 5 years and 6 months and this sentence is not unfair, not unjustly crushing and not oppressive.

So for the offence of trafficking in dangerous drugs, the defendant is sentenced to 5 years and 6 months’ imprisonment.