HKSAR v. HUI KA WAI

DCCC 980/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 980 OF 2016

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to:-

- 1^st Charge: Trafficking in dangerous drugs concerning 1.42 grammes of ketamine and 4.62 grammes of cocaine;

- 2^nd Charge: Trafficking in dangerous drugs concerning 22.8 grammes of cocaine, 5.31 grammes of methamphetamine hydrochloride commonly known as “ice” and 30.46 grammes of ketamine;

- 3^rd Charge: Possession of apparatus fit and intended for inhalation of a dangerous drug.

SUMMARY OF FACTS

1^st charge

2.  At around 9:24 pm on 9 July 2016 whilst PC 6515 (“PW1”), WPC 15238 (“PW2”) and other police officers were on patrol, they saw the defendant and two unknown males acting suspiciously at the pedestrian link near Ka Yee Lau and Ka Lim Lau, Ka Wai Chuen, Hung Hom, Kowloon, Hong Kong.  When PW1 and others tried to stop them for enquiry, the defendant and the two unknown males fled the scene.  PW1 and PW2 chased after the defendant, during which, they saw the defendant abandoning a coins bag on the ground.  PW1 immediately picked up the coins bag and continued chasing after the defendant.  Having chased after the defendant for a short while, PW1 and PW2 intercepted the defendant.

3.  PW1 then cautioned the defendant and opened the coins bag, which found to contain 1 resealable plastic bag containing 2.75 grammes of a powder containing 1.42 grammes of ketamine and 24 resealable plastic bags containing 5.23 grammes of a solid containing 4.62 grammes of cocaine, in front of the defendant.

4.  Under caution, the defendant admitted that he fled because he had drugs with him and that the coins bag seized by PW1 contained cocaine and ketamine, which he had bought from someone in Mongkok earlier on the day.  PW1 then arrested and cautioned the defendant.

5.  After the initial investigation was completed, the Defendant was released on police bail.

6.  The street value of the cocaine and ketamine seized was about HK$8,376.76.

2^nd & 3^rd charges

7.  At around 7:23 pm on 13 July 2016, PC 12510 (“PW5”) and other officers gained entrance to Room 6A, Ovolo, No 256 Tung Chau Street, Sham Shui PO, Kowloon, Hong Kong (“the Room”). Upon entering the Room, PW3 saw the defendant sitting on the sofa at the living room and a male standing at the back of the door of the Room.  Besides, two couples were respectively found inside two rooms inside the Room. 

8.  Upon search of the premises, the dangerous drugs which is the subject of 2^nd charge were found in the living room.  The total quantity of dangerous drugs seized were 22.8 grammes of cocaine, 5.31 grammes of ice and 30.46 grammes of ketamine.  The three different dangerous drugs were separately packed in altogether 27 resealable bags.  Further, a broken glass bottle fitted with a plastic straw and a plastic bottle containing 5 millilitres of a liquid containing traces of methamphetamine, a tin containing a pile of fresh and empty resealable plastic bags and two electronic scales were also found in the premises.

9.  PC 16538 (“PW4”) then arrested the defendant.  Under caution, the defendant admitted that the drugs found on the table belonged to him and that he used the Bottle to consume drugs.

10.  In the subsequent video-recorded interview, the defendant admitted under caution that the drugs and the glass bottle seized from the Room belonged to him and that he was unemployed.

11.  The street value of the drugs seized on 13 July 2016 was around HK$58,073.49.

MITIGATION

12.  The defendant is 20 years’ old and has a clear record in Hong Kong.  He was abandoned soon after his birth and was adopted by his parents when he was 5 months’ old.  He was diagnosed to suffer from Asperger syndrome when he was 9 years’ old which was said to have affected his study and communication with peers.  In fact, the defendant has been sent to DATC previously but with no conviction recorded.  It was mitigated that the defendant was badly influenced by his peers and has been addicted to dangerous drugs since the age of 15.  The defendant was educated up to F3 and worked as a kitchen assistant earning about $ 4,000 per month.  He committed the present offences as he needed quick money for his own consumption of drugs.

13.  For his own consumption of dangerous drugs, it was put forward by Mr Lai, solicitor for the defendant that he consumed about 0.3g of “ice”per day.  It was said that the defendant also consumed some of the cocaine and ketamine seized in the present case.  Mr Chan for the prosecution fairly did not take issue on that.

SENTENCE

14.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in various dangerous drugs.  For 10 to 50 grammes of ketamine, the sentence ranges from 4 to 6 years’ imprisonment after trial[1]. Trafficking in 10-50g grammes of cocaine carries a sentence of 5 to 8 years’ imprisonment: see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and R v Lau Tak Ming & Others [1990] 2 HKLR 370.  Trafficking in up to 10 grammes of “ice” carries a sentence of 3 to 7 years: see HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.

Respective tariff (1^st and 2^nd charges)

15.  In view of the respective tariffs for trafficking in ketamine, cocaine and ice, trafficking in 31.88g of ketamine will attract a starting point of 5 years ie 60 months’ imprisonment, and 27.42g cocaine of about 6.5 years, ie 78 months, and 5.31g of ice of about 5 years, ie 60 months’ imprisonment.  However, the overall starting point is not to be achieved by just adding up all starting points, otherwise, the overall starting point will be manifestly excessive.

Overall starting point

16.  In determining the proper overall starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v Yip Wai Yin & another CACC 80/2003, HKSAR v Cheng Yat Ming CACC 455/2006 and HKSAR v Chan Yuk Leong CACC  318/2013.

17.  The Court of Appeal in HKSAR v Chan Yuk Leong CACC 318/2013, by reference to previous decided cases, has provided three means of cross-checking the appropriateness of the overall starting point in case of a trafficking involving different types of dangerous drugs:-

(i) The first means is called the “absurdity test”. In the present case, assuming the whole quantity of drugs seized in 2 trafficking amount (64.61 grammes) contained only the most serious drug, ie ice, the starting point would have been about 9.5 years, that is 114 months’ imprisonment.

(ii) The second means is called the “conversion test”. In the present case, I note that the sentence for trafficking in 31.88 grammes of ketamine would be similar to the sentence for trafficking about 6 grammes of “ice”. And sentence for trafficking in 27.42 grammes of cocaine would be similar to the sentence for trafficking about 8 grammes of ice. If one were to add the converted quantities (6g + 8g of ice) to the 5.31 grammes of ice seized, one would arrive at a total of about 19.31 grammes of ice. Applying the sentencing guidelines Ching Kwok Hung and Tam Yi Chun tariffs, one would arrive at a sentence of about 90 months’ imprisonment.

(iii) The third means is called the “ratio test”. Applying this test, on the basis that the “ice” seized accounted for about 10% of the total quantity seized and that the cocaine accounted for about 40% and the ketamine accounted for about 50%, the overall starting point would be about 85 months.

Dangerous drug	Sentence assuming 64.61g of a single drug	Ratio	Sentence
Ice	114 months	0.1	11 months
ketamine	72 months	0.5	36 months
cocaine	96 months	0.4	38 months
		Total	85 months

18.  The Court of Appeal in the case HKSAR v Chan Yuk Leong CACC 318 of 2013 observed that the fact 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 aggravating feature is the ability of the trafficker to cater to a wider market.  More important is the effect on users of combinations of dangerous drugs.

19.  In HKSAR v Ko Ka Hing [2009] 4 HKLRD 856, the Court of Appeal held that where the “combined approach” is taken, the court will rely on common sense in determining which type of the dangerous drugs is to be regarded as the more serious, hence forming the basis of the starting point.  For example, a certain type of drug, although less potent, may be present in much larger quantity than another, in which case its quantity will form the basis for the starting point.

20.  In the present case, I am of the view that the “combined approach” would arrive at a realistic and fair sentence.  In terms of either potency or quantity, 27.42 grammes of cocaine should form the basis of the starting point.  Hence, I adopt a basic starting point of 78 months’ imprisonment and adjust it upward by 6 months for the quantity of 31.88g of ketamine and 5.31g of ice found in the present case, arriving at 84 months’ imprisonment.

Self-consumption

21.  Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles[2]. The defendant said that he has been a drug addict since 15 years old and has been sent to DATC in the past.  He also claimed that he would have consumed half of the ice some of the ketamine and cocaine seized in the case.  I am prepared to give 20% discount for his self-consumption and reduce the sentence to 67 months[3].

22.  A one-third discount is given for the guilty plea, reducing the sentence further to 44 months’ imprisonment. Apart from this, I see no other mitigating factors which warrant any further reduction.  I consider the overall sentence to 44 months' imprisonment for the two counts of trafficking in dangerous drugs is appropriate.

23.  Regarding the 3^rd charge of possession of apparatus fit for inhaling dangerous drugs, I take a starting point of 3 months’ imprisonment and give a full one third discount for his guilty plea.  The final 2 months’ imprisonment will run wholly concurrently with the 44 months’ imprisonment imposed for the 2 trafficking counts, given the totally principle.  The defendant is sentenced to 44 months’ imprisonment in total

accordingly. The breakdown of sentence is as follows:-

1^st charge - 45 months as the starting point, reduced to 30 months’ imprisonment after 1/3 discount;

2^nd charge - 84 months as the starting point, reduced to 67 months after 20% discount for self-consumption, further reduced to 44 months’ imprisonment after 1/3 discount;

3^rd charge - 3 months as the starting point, reduced to 2 months’ imprisonment after 1/3 discount.

24.  All sentences are to be served wholly concurrently.