HKSAR v. LEE KWOK TUNG

DCCC 993/2022

[2023] HKDC 1412

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 993 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea and agreement to Amended Summary of Facts by a charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

Facts

2.  At 0015 hours on 19 June 2022, police officers spotted the defendant sitting in the driver’s seat of a parked car bearing registration mark XZ4069 (“the Vehicle”), at a bus stop on Yan Po Road, Tuen Mun. The defendant was found to be in possession of the Vehicle’s key.

3.  Upon a search of the Vehicle in his presence, a blue and yellow thermal bag was found on the floorboard of the driver’s seat. The said thermal bag was found to contain: -

(a)  9 plastic bags, each containing 10 transparent resealable plastic bags:

(i)  5 of the plastic bags (containing a total of 50 plastic bags)  contained a total of 15.48 grammes of a solid containing 12.99 grammes of ketamine;

(ii)  the other 4 plastic bags (containing a total of 40 plastic bags)  contained a total of 5.65 grammes of a solid containing 4.80 grammes of cocaine.

(b)  A cigarette packet containing 17 cigarettes containing a mixture containing a total of 2.11 grammes of a solid containing 1.70 grammes of cocaine; and

(c)  A cigarette packet containing 20 cigarettes containing a mixture containing a total of 2.40 grammes of a solid containing 1.92 grammes of cocaine.

4.  The defendant was later arrested for trafficking in dangerous drugs. Under caution, he claimed that he bought the drugs for his own consumption. At the time of his arrest, he had cash of $1,016.10 and 2 mobile phones on his body.

5.  The street value of the ketamine seized was around $8,421 while the cocaine was estimated to be around $8,494 (for the cocaine powder)  or $12,771 (for the crack cocaine).

6.  At all material times, the defendant possessed all the drugs seized for the purpose of unlawful trafficking.

Criminal Record

7.  The defendant has a spent conviction of possession of dangerous drugs for which he was put on probation for 12 months in the year 2019.

Mitigation

8.  Defence counsel submitted that the defendant is aged 25. He is single. He came from mainland China in the year 2002 and was educated up to Form 2. He lived with his family, which consist of his parents and 2 younger siblings. He used to work as a chef earning $21,000 to $24,000 a month and he contributed monthly to the household expenses.

9.  Defence counsel conceded that the sentencing authority for trafficking in ketamine is SJ v Hii Siew Cheng, CAAR 7/2006, and that the sentencing authority for trafficking in cocaine is AG v Pedro Nel Rojas, CAAR 15/1993.

10.  He submitted that as more than one type of drugs were involved in this trafficking charge, the court should consider various approaches in order to determine the appropriate sentencing starting point. Using the ratio test, the sentencing starting point for trafficking the drugs in question would be 60.92 months’ imprisonment.

11.  He said that the ratio test yields the most favourable result for the defendant and he urged this court to adopt using the ratio test in determining the sentencing starting point.

12.  He confirmed to this court that the defendant would not be asking for sentencing discount by reason that he might be using part of the drugs for his own consumption.

13.  Defence counsel urged this court to give the defendant one-third sentencing discount by reason of his guilty plea.

14.  He also handed to the court the mitigation letter from the defendant’s sister, which asked this court for leniency. The letter says that the defendant has all along been a responsible and filial son, helping the family in defraying the monthly household expenses.

Discussion

15.  Before sentencing, this court has carefully considered all that was advanced on behalf of the defendant, including the mitigation letter from the defendant’s sister.

16.  On conviction upon indictment of this charge, the maximum sentence is a fine of $5 million and imprisonment for life.

17.  Trafficking in dangerous drugs is a very serious offence. In usual circumstances, it is well established that personal background and circumstances is not considered a valid mitigating factor. Likewise, committing the offence by reason of financial difficulty or to earn fast money to help the family again is not a valid mitigating factor.

18.  The drugs involved in this case is 12.99 grammes of ketamine and 8.42 grammes of cocaine. Under the combined approach and applying the ratio test, the sentencing starting point in this charge should be 60.92 months’ imprisonment as suggested by defence counsel. This court is persuaded by defence counsel and finds it most appropriate to adopt the combined approach in calculating the sentencing starting point.

19.  It is also well-established that where there are more than one type of drugs involved, the same constitutes an aggravating feature in sentencing, for which the sentencing starting point would be enhanced. In this case, the court will enhance the same by 3 months’ imprisonment, taking the sentencing starting point to 63.92 months’ imprisonment.

20.  The defendant has pleaded guilty, which is the most valid mitigating factor and is entitled to full one-third sentencing discount.

21.  He is therefore sentenced to 42 months and 19 days’ imprisonment for this case.