HKSAR v. CHOY CHI YIN

DCCC 50/2021

[2021] HKDC 1464

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 50 OF 2021

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to two charges:-

(a)  the first charge is trafficking dangerous drugs, namely 2.78 grammes of a solid containing 1.93 grammes of ketamine and 0.44 grammes of fluorodeschloroketamine, 18.48 grammes of a solid containing 11.7 grammes of cocaine and 0.96 grammes of a solid containing eutylone;

(b)  the second charge is possession of a dangerous drugs, namely 0.87 grammes of cannabis in herbal form.

Summary of facts

2.  At around 0128 hours on 18 August 2020, the Defendant stopped its car near to the Tsing Yi Police Station, when the Sergeant drove near to the Defendant’s car, it suddenly accelerated.

3.  The Defendant was eventually intercepted and a car search was conducted, the following items were found inside the Defendant's car:-

(a)  0.87 g herbal cannabis;

(b)  99 plastic bags containing 18.48 g solid containing 11.7 g cocaine;

(c)  4 plastic bags containing 2.78 g solid containing 1.93 g ketamine and 0.44 g fluorodeschloroketamine; and

(d)  1 plastic packet containing 0.96 g solid containing eutylone.

4.  In the cautioned video record of interview, the Defendant said that:-

(a)  he borrowed the car from a friend;

(b)  when he stopped the car in Pei Ho Street, an unknown male approached him to ask him if he wanted to make quick money;

(c)  the Defendant agreed to deliver the box found in the car to Tsing Yi Pier for a reward of 1,000; and

(d)  while the cannabis found in the car were all for his own consumption.

Criminal record

5.  The Defendant has 3 previous court appearances with 4 convictions:-

(a)  two charges of AOABH. He was sentenced to 18 months PO order in 2014.

(b)  he breached the PO order in 2015 and was re-sentenced to Detention Centre.

(c)  In 2018, possession of offensive weapon in a public place and possession of dangerous drugs (herbal cannabis). He was sentenced to 2 months and 2 weeks respectively.

Mitigation

6.  The Defendant is now 23 years old, prior to the present incident, he lived with his parents and two younger sisters who are 15 and 12 respectively.

7.  His father lost one of his legs last year.  His mother is a house wife.  The Defendant used to be a sole bread winner before the arrest.

8.  He started working at the age of 19, worked in the construction site and earned about $10,000 per month.

9.  The Defendant is now deeply remorseful for his stupid decision to deliver the drugs for a reward of HK$1,000.  In his mitigating letter, the Defendant also said that he is very much regrettable for his misdeed, he will turn over a new leaf and be a good person to his family and to the society in the future.

10.  I am told that his mother and one of his sisters are in court today to give him support.

11.  As there were a number of different types of drugs involved in the present case, the defence invited this court to consider that the sentencing tariff for cocaine should also apply to eutylone.  Today, the defence agreed with the prosecution that sentencing tariff for ketamine should apply for eutylone.

12.  The money found in his person, being HK$15,670 were all his saving.  Today I am told that the prosecution has no objection for the return of the money to the defendant.

Sentence

13.  The sentencing guideline for ketamine can be found in the case of S of J v Hii Siew Cheng [2009] 1 HKLRD I that 1 to 10 grammes is 2 to 4 years. While sentencing guideline for cocaine can be found in R v Lau Tai Ming [199012 HKLRD 370 that up to 10 grammes of cocaine falls into the sentencing bracket of 2 to 5 years.

14.  It has been stated that in HKSAR v Ng Cheuk Lun HCCC 193/2020 that sentencing tariffs for ketamine should also be applicable for fluorodescholorketamine due to similar potency.

15.  In the present case, both parties agreed that eutylone should be categoried as ketamine.

16.  According to the case of HKSAR v Harry Jane Yusup, Yusuph [2021] 1 HKLRD 290, this court needs to consider the role and culpability of the Defendant. As the Defendant said under caution, he was on his way to deliver drugs, he was a courier at the material time.

17.  Since there were different types of drugs involved in charge 1, according to the calculations:-

(a)  absurdity test, the total sentence is one of 65 months;

(b)  conversion test, the sentence is 63 months;

(c)  ratio test, the sentence is 61.5 months.

18.  As 61.5 months is lowest sentence amongst all, I adopt a sentence of 61.5 months for charge 1, I adjust upward the notional starting point to 66 months in view of the role that the defendant is a courier and that the defendant was dealing with more than one type of drugs, catering for a far wider market than the trafficker who deals in only one kind of drugs.

19.  I reduced the sentence to 44 months after 1/3 discount for charge 1.

20.  As to charge 2, the quantity of the cannabis in herbal form is 0.87 grammes, I adopted a starting point of 3 weeks, reduced to 2 weeks.  I order both sentences to be run concurrently.

21.  Order:-

Charge 1: 44 months imprisonment

Charge 2: 2 weeks.

Both sentences to be run concurrently.