HKSAR v. FUNG WAI HO

DCCC 509/2021

[2022] HKDC 171

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 509 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134.

Facts

2.  At around 9:08 p.m. on 27 January 2021, the defendant was the driver of a private car and parked the car at a parking space of the outdoor carpark of Yiu On Estate.  The defendant was sitting on the driver seat and his girlfriend was sitting on the front passenger seat.

3.  A team of police officers noticed the car and wished to make enquiries.  When they were approaching the car, the defendant threw a piece of white tissue containing 3 resealable plastic bags of ketamine out of the car window.  PC12280 asked the defendant to alight from the car and intercepted him.  He also seized the tissue and its contents which were dropped onto the ground beside the driver’s seat.

4.  PC12280 then searched the car in the presence of the defendant and found two resealable plastic bags inside a compartment of the driver’s door.  One of the plastic bags contained 10 resealable plastic bags of ketamine, and the other plastic bag contained 40 resealable plastic bags of cocaine.    PC12280 also found a wallet containing HK$11,500 on the dashboard of the car.

5.  PC12280 arrested the defendant for the offence of trafficking in dangerous drugs.  Under caution, the defendant stated that the drugs all belonged to him and that his girlfriend was not involved.  In his video-recorded interview, the defendant stated under caution inter alia that he was at Ma On Shan at the time of his arrest because someone had called him to bring the seized drugs to an unknown person, and that he would be rewarded afterwards.

6.  The government chemist subsequently confirmed that: (a)  the 3 resealable plastic bags inside the tissue contained a total of 2.05 grammes of a solid containing 1.73 grammes of ketamine; (b)  the 10 resealable plastic bags found inside one bag in the car door compartment contained a total of 6.83 grammes of a solid containing 5.82 grammes of ketamine, and (c)  the 40 resealable plastic bags found inside the other bag in the car door compartment contained a total of 6.24 grammes of a solid containing 5.84 grammes of cocaine.

7.  There were therefore a total of 8.88 grammes of a solid containing 7.55 grammes of ketamine.  The estimated street value was HK$5,976.  The estimated street value of the cocaine was HK$12,592.

8.  The defendant admitted that he possessed the drugs seized at the material times for the purpose of unlawful trafficking.

Criminal record

9.  The defendant had one previous conviction involving 3 charges of burglary and two charges of theft in February 2015.  He was sentenced to be detained in a detention centre.

Personal and family background

10.  The defendant was born on 12 August 2000 in the Mainland.  He came to Hong Kong in 2003.  He is now 21 years old.  He is single.  He studied up to Form 2 in Hong Kong.  He worked as a driver from January 2020 to September 2020 and was unemployed since. His parents were divorced.  He lives with his mother in a public housing estate.

Mitigation

11.  Mr Chan Pak Kong, the learned counsel for the defendant, informed this court that the defendant committed the offence because of his wish to earn quick money.  Mr Chan stressed that the defendant was truly remorseful as reflected by his full co-operation with the police and his guilty plea at the very first opportunity. Mr Chan referred this court to the relevant sentencing tariffs for unlawful trafficking in ketamine and cocaine.  He recognized that the defendant had trafficked in two kinds of drugs, and submitted that the court should adopt the combined approach in sentencing.  He assisted this court to arrive at the proper starting point by making various calculations under the absurdity test, the conversion test and the ratio test to cross check what should be the appropriate starting point of the term of imprisonment to be imposed on the defendant.  He submitted that the defendant was entitled to the full one-third discount of the sentence due to his guilty plea.

12.  Mr Chan also produced 3 mitigation letters written by the defendant, his mother and former employer.  The defendant said that he was truly remorseful and regretted that he had succumbed to his greed for quick money after he had become unemployed. His mother vowed to supervise the defendant when he returned home.  His former employer and colleagues commented that the defendant was hardworking and was just being led astray by his undesirable peers.  They all asked this court to be lenient in sentencing and give the defendant a chance.

Reasons for sentence

13.  Trafficking in dangerous drugs has always been regarded by the courts in Hong Kong to be a very serious offence.  For this reason, even if the amount of dangerous drugs being trafficked is small, the usual sentencing option is still one of imprisonment.  It is only in cases where the facts are extremely unusual or where exceptional mitigating factors exist will this sentencing option not be employed.

14.  In the present case, despite the defendant’s guilty plea and all the mitigation that has been advanced on his behalf, there is simply no justification for imposing a non-custodial sentence.  In fact, Mr Chan only asked for a term of imprisonment as lenient as possible.  For these reasons, the appropriate sentencing option must be imprisonment, and the only issue is the length of the prison term.

15.  The Court of Appeal has laid down guidelines for determining the length of imprisonment for trafficking in different types of drugs.  In this case, the defendant had trafficked in two types of dangerous drugs, namely, cocaine and ketamine.

16.  In Secretary for Justice v Hii Siew Cheng[1], the Court of Appeal decided that the appropriate starting point for trafficking in 1 to 10 grammes of ketamine was 2 to 4 years’ imprisonment.  If the quantity of ketamine was between 10 to 50 grammes, the appropriate starting point was 4 to 6 years’ imprisonment.

17.  In this case, the total weight of ketamine trafficked by the defendant was 7.55 grammes.  As a matter of pure arithmetic calculation according to the ketamine guideline, the appropriate starting point of the term of imprisonment for trafficking in this quantity of ketamine is 42.12 months which is rounded off to 42 months.

18.  In Attorney General v Pedro Nel Rojas[2], the Court of Appeal decided that the sentencing guideline for trafficking in heroin hydrochloride as laid down in The Queen v Lau Tak Ming[3] was applicable to trafficking in cocaine.  According to these authorities, the appropriate starting point for trafficking up to 10 grammes of cocaine is 2 to 5 years’ imprisonment, and for trafficking between 10 and 50 grammes of cocaine, the appropriate starting point is 5 to 8 years’ imprisonment.

19.  In this case, the weight of cocaine trafficked by the defendant was 5.84 grammes.  As a matter of pure arithmetic calculation according to the cocaine guideline, the appropriate starting point of the term of imprisonment for trafficking in this quantity of cocaine is imprisonment for 45.024 months which is rounded off to 45 months.

20.  Hence, if the “individual approach” were to follow, the starting point of the sentence to be imposed on the defendant would have been imprisonment for 42 + 45 = 87 months.

21.  Mr Chan submitted that the “combined approach” should be adopted. 

22.  Applying the absurdity test, assuming all the dangerous drugs trafficked by the defendant were the more potent drug cocaine, the total quantity of 7.55 + 5.84 = 13.39 grammes of cocaine would have attracted a starting point of 63.051 months which will be rounded off to 63 months’ imprisonment, purely as a matter of arithmetic calculation according to the cocaine guideline.

23.  It is therefore clear that the “individual approach” would have resulted in a sentence too heavy for the defendant, and that it is more appropriate to adopt the “combined approach” as submitted by the learned counsel for the defendant. 

24.  In HKSAR v Islam SM Majharul[4], the Court of Appeal set out the methodology to follow for the “combined approach”.

25.  Since cocaine is the more potent drug, it will be used as the base drug for calculating the starting point of the total drugs.  As stated before, trafficking in 5.84 grammes of cocaine will attract a starting point of 45 months’ imprisonment.

26.  The next step is to determine how much of this starting point should be increased to allow for the 7.55 grammes of ketamine being trafficked by the defendant.

27.  As stated above, trafficking in 7.55 grammes of ketamine will attract a starting point of 42 months’ imprisonment according to the ketamine guideline.  On the other hand, trafficking in 5 grammes of cocaine will also attract a starting point of 42 months’ imprisonment. 

28.  Hence, using the conversion test, it is appropriate to treat the defendant to have trafficked in 5.84 + 5 = 10.84 grammes of cocaine.  Applying the cocaine guideline, the appropriate starting point will be imprisonment for 60.756 months under the conversion test if cocaine is to be used as the base drug.

29.  If ketamine is to be used as the base drug, trafficking in 7.55 grammes of ketamine will attract a starting point of 42 months’ imprisonment, and it is necessary to consider how much of the starting point should be increased to allow for the 5.84 grammes of cocaine being trafficked by the defendant which according to the cocaine guideline will attract a starting point of 45 months’ imprisonment. 

30.  According to the ketamine guideline, trafficking in 8.75 grammes of ketamine will attract a starting point of 45 months’ imprisonment.  Hence, using the conversion test, the defendant can be regarded to have trafficked in 7.55 + 8.75 = 16.3 grammes of ketamine.  Applying the ketamine guideline, the appropriate starting point will be 51.78 months’ imprisonment under the conversion test if ketamine is to be used as the base drug.

31.  The ratio test can also be employed to ascertain the appropriate starting point.  The total quantity of the two drugs was 7.55 + 5.84 = 13.39 grammes.

Dangerous Drug	The starting point if all 13.39 grammes of the drugs were:	Ratio by weight	Sentence
cocaine	63 months	5.84/13.39 = 0.436	27.468 months
ketamine	50.034 months	7.55/13.39 = 0.564	28.219 months
		Total	55.687 months

32.  Hence, under the conversion test, if cocaine is used as the base drug, the starting point will be 60.756 months’ imprisonment; if ketamine is used as the base drug, the starting point will be 51.78 months’ imprisonment; and under the ratio test, the starting point will be 55.687 months’ imprisonment.

33.  Taking all these matters into account to calculate a reasonable and realistic increase to the starting point, the cocaine in this case is used as the base drug in sentencing and the starting point of 45 months’ imprisonment is adopted.  This starting point will be increased by 12 months to 57 months’ imprisonment to take into account the fact that the defendant had also trafficked in the ketamine in this case.  This starting point is fixed on the basis that the defendant was merely a courier.  If it could be shown that he was engaged in actual or direct trafficking of dangerous drugs to others, more severe sentence may be imposed: HKSAR v Herry Jane Yusuph[5].

34.  However, this starting point of 57 months’ imprisonment has to be enhanced by 3 months to 60 months’ imprisonment because the defendant had trafficked in two types of drugs[6]. There are no other factors that may enhance the sentence further.

35.  As rightly pointed out by Mr Chan, the only effective mitigating factor is the defendant’s timely guilty plea.  The defendant is entitled to the usual one-third discount of the sentence.  Mr Chan submitted that the defendant had fully co-operated with the police and made full admission in the video-recorded interview, and that he was truly remorseful.  However, the authorities show that such factors will not result in further reduction of the sentence in addition to the usual one-third discount.

36.  This court has considered all the mitigation urged upon this court by Mr Chan and in the 3 mitigation letters.  However, there is no other effective mitigating factor that may reduce the sentence further.

37.  For these reasons, the defendant is sentenced to serve a term of imprisonment for 40 months.