HKSAR v. MA TING MAN

DCCC 844/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 844 OF 2016

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of Trafficking in dangerous drugs. Particulars are that he on 25 May 2016, at Room 927, Lai Fu House, Lai Kok Estate, Sham Shui Po, unlawfully trafficked in a 12.8g solid containing 9.87g of cocaine, and 223g of a powder containing 69.1g of ketamine.

Summary of facts

2.  The defendant was intercepted by plainclothes officers who were waiting in ambush outside Room 927 when he returned to the flat at 11:37pm on the offence date.

3.  In execution of a search warrant, the officers entered the flat with the defendant’s keys and conducted a search.

4.  The following items were found upon search. A transparent re-sealable plastic bag containing 61 plastic bags containing the charged cocaine; and a black plastic bag containing 17 plastic bags with the charged ketamine.

5.  The defendant was arrested and said under caution that he was selling the ‘coke’ and ‘perfume’ to others.

6.  An electronic scale, a spoon and a $20 banknote, each with traces of drug, were found in the flat, as well as 373 empty transparent re-sealable plastic bags of 3 different sizes.

7.  The defendant admitted under caution that the beige coloured substance found in the flat was cocaine, and the white coloured substance was ketamine. They all belonged to him.

8.  The defendant claimed that a person called ‘Ah Chiu’ asked him 2 days ago if he wanted to earn some quick money by helping him to traffic in the drugs for $2,000. The defendant agreed and picked up the drugs from a flowerbed in Lai Kok Estate and brought them home.

9.  The defendant repackaged the drugs into smaller bags using the electronic scale, the spoon and the $20 note.

10.  The estimated market value of the cocaine and ketamine as of May 2016 was $13,580 and $29,213 respectively.

Previous convictions

11.  The defendant has 6 convictions, with one being for possession of dangerous drugs. There are no previous similar convictions for trafficking in dangerous drugs. His latest conviction was in January 2015 for theft when he was sentenced to 1 month’s imprisonment at Kowloon City Magistracy. I do not find his conviction record an aggravating factor.

Mitigation

12.  The defendant is 32, single, lives with mother who is 64 and on CSSA. The defendant has an  elder brother, a sister and a younger brother who are all married and living separately. The defendant’s father passed away in 1990.

13.  The defendant immigrated to Hong Kong at the age of 4. He was educated up to F.3 level, thereafter working as a construction site worker. He was unemployed at the time of the commission of the offence.

14.  The defendant wrote to the court asking for leniency. Mr Lai reminded the court of his guilty plea, and that this is the defendant’s first conviction for trafficking in dangerous drugs.

15.  The parties agreed that the defendant had entered a timely guilty plea and that he should receive the full one-third discount.

Sentencing tariffs

16.  The sentencing tariff for trafficking up to 10 grammes of cocaine is that of 2 to 5 years’ imprisonment[1]; and for between 50 to 300 grammes of ketamine is that of 6 to 9 years’ imprisonment[2].

Sentence

17.  The maximum sentence upon conviction on indictment for trafficking in dangerous drugs is that of life imprisonment.

Individual approach

18.  If we apply the individual tariffs, 69.1g of ketamine and 9.87g of cocaine would result in sentences of 75 months and 57 months respectively. If the sentences are to be added together   without adjustment, the total sentence would be 132 months’ imprisonment (11 years). This is the ‘individual approach’ as mentioned in the case of HKSAR v Yip Wai Yin & another, CACC 80 of 2003.

Combined approach

19.  The combined approach is where the sentencing judge would 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) drug.

20.  As observed by Ma CJHC (as he then was) in Yip Wai Yin, in most cases, the combined approach will be the correct approach.

21.  In our present case, I find that such is the case and I do adopt the combined approach.

22.  The more serious drugs in the present case is cocaine. For 9.87g, a starting point of 57 months is appropriate.

23.  This sentence is then to be adjusted upward for the presence of the significant amount of ketamine.

24.  I apply below the three tests adopted by the Court of Appeal in HKSAR v Chan Yuk Leong (陳旭亮), CACC 318 of 2013 meant for cross-checking on the appropriateness of the combined sentence in order to determine the appropriate adjustment.

The absurdity test

25.  Total weight of drugs seized is 78.97g. The more potent drug is cocaine. Assuming all the seized drugs were cocaine, the sentence for 78.97g would be 105 months’ imprisonment (8 years 9 months). The adjustment should not result in a sentence more severe than this.

The conversion test

26.  This test requires the conversion of the quantity of ketamine into an equivalent quantity of cocaine that would result in the same sentence for that quantity of ketamine.

27.  The tariff sentence for 69.1g of ketamine would be 75 months’ imprisonment, similar to that which would be imposed for trafficking in about 27 grammes of cocaine.

28.  If one were to add the converted quantity of 27g to the 9.87g of cocaine seized in this case, one would arrive at a total of 36.87g of cocaine.

29.  Applying the Lau Tak Ming tariffs, one would arrive at a sentence of 85 months’ imprisonment for 36.87g of cocaine. The resulting sentence should be in the vicinity.

The ‘ratio test’

30.  On the basis that cocaine accounted for 0.12 in weight of the total quantity seized (9.87/78.97) and 0.88 (69.1/78.97) for the ketamine:

Dangerous drugs	Sentence assuming 78.97g of single drug	Ratio	Sentence
Cocaine	105 months	0.12	12.6 months
Ketamine	78 months	0.88	68.64 months
		Total=	81.24 months

31.  Bearing in mind the results of the above 3 tests, I find that a starting point of 84 months’ imprisonment is appropriate and I would adjust the sentence upwards accordingly.

32.  I find that there are no aggravating features in the defendant’s commission of the offence. The only mitigating factor is the defendant’s plea of guilty, for which I grant him the full one-third discount.

33.  The defendant is therefore sentenced to 56 months’ imprisonment after plea.