HKSAR v. AND ANOTHER

DCCC 508/2023

[2024] HKDC 583

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 508 OF 2023

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REASONS FOR SENTENCE

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1.  D1 and D2 are jointly charged with one count of trafficking in dangerous drugs. Both of them pleaded guilty to the charge. The facts admitted by them can be summarised as follows.

2.  At around 4:45 pm on 25 December 2022, police officers on patrol in Ma On Shan spotted a black private car. D1 was sitting on the front passenger’s seat and D2 sitting on the driver’s seat. The vehicle was parked there with its engine running. A female approached D1 and passed some money to D1. Feeling suspicious, police officers intercepted D1, D2 and the female.

3.  Police searched the vehicle and found the following items:-

At the storage area at the door of the front passenger’s seat:

(a)  one plastic bag containing 3 plastic bags containing a total of 1.58 grammes of a solid containing 1.26 grammes of ketamine (Exhibit 1);

(b)  one plastic bag containing 5 plastic bags containing a total of 1.31 grammes of a solid containing 1.2 grammes of cocaine (Exhibit 2);

(c)  one plastic bag containing 3 plastic bags containing a total of 1.52 grammes of a solid containing 1.28 grammes of ketamine (Exhibit 3);

At the gloves box at the front passenger’s seat:

(d)  one black plastic bag containing items (e)  to (i);

(e)  one plastic bag containing 8 plastic bags containing a total of 4.19 grammes of a solid containing 3.54 grammes of ketamine (Exhibit 4);

(f)  one plastic bag containing 10 plastic bags containing a total of 5.23 grammes of a solid containing 4.12 grammes of ketamine (Exhibit 5);

(g)  one plastic bag containing 10 plastic bags containing a total of 5.09 grammes of a solid containing 3.92 grammes of ketamine (Exhibit 6);

(h)  one plastic bag containing 10 plastic bags containing a total of 5.28 grammes of a solid containing 4.12 grammes of ketamine (Exhibit 7);

(i)  one plastic bag containing 4 plastic bags containing 1.93 grammes of a solid containing 1.49 grammes of ketamine (Exhibit 8);

(j)  one plastic bag containing 10 plastic bags containing 2.6 grammes of a solid containing 2.43 grammes of cocaine (Exhibit 9);

(k)  one plastic bag containing 10 plastic bags containing 2.59 grammes of a solid containing 2.41 grammes of cocaine (Exhibit 10);

(l)  one plastic bag containing 4 plastic bags containing 1.02 grammes of a solid containing 0.95 grammes of cocaine (Exhibit 11);

(m)  one plastic bag containing 10 plastic bags containing 2.6 grammes of a solid containing 2.44 grammes of cocaine (Exhibit 12); and

At a gap on the left side of the driver’s seat:

(n)  one plastic bag containing traces of a solid containing cocaine (Exhibit 13).

4.  Under verbal caution, D1 stated that he boarded the vehicle to distribute stock. The female was there to get ‘Coke’. Police seized cash of HK$23,741.10 on D1.

5.  Under reminded caution, D2 stated in a videoed interview that the dangerous drugs belonged to D1, the vehicle belonged to his friend, Chan Ho-wing. He picked up D1 according to instructions from a person he could not remember. He saw D1 placed the dangerous drugs in the vehicle after he boarded the vehicle.

6.  Police inquiry revealed that Chan Ho-wing was the registered owner of the vehicle and D2 was his friend. Chan said he passed the vehicle to D2 for his use during Christmas.

7.  D1 has a clear record.

8.  D2 has two previous convictions. On 14 April 2022, he was sentenced for managing gambling establishment and another offence to a total term of imprisonment for 4 weeks, suspended for 18 months. Therefore, at the time of committing the present offence, he was in breach of the suspended sentence.

9.  The prosecution also asked the court to consider enhancing the sentence on D2 under section 56A of the Dangerous Drugs Ordinance because D1 is a minor.

10.  Mr Davies, counsel for D1, has filed written submissions and made oral submissions in mitigation in court. He says D1 is now 16 years old with a clear record. He comes with a humble family background, his parents have worked together in the recycling business for more than 10 years. D1 is a Form 3 student.

11.  Counsel refers the court to the sentencing approach in drug trafficking cases set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[1] as well as the sentencing guideline cases for trafficking in cocaine and ketamine. He submitted that it is more appropriate to adopt the “combined approach” in the present case.

12.  He has also helpfully calculated the results under the three cross-check tests as explained by the Court of Appeal in Chan Yuk Leong[2]. The results are: Under the absurdity test, the starting point is 77 months; under the conversion test, if cocaine is used as the base drug, the starting point will be 66 months; under the ratio test, the result is 64 months.

13.  Learned counsel accepts that a cocktail drug trafficking offence would generally be considered as an aggravating factor. He invites the court not to aggravate the sentence.

14.  Counsel submits that D1 gave a full and frank admission at the earliest opportunity. He made a verbal admission under arrest at the scene. He fully cooperated with the police and also indicated that he was willing to be a prosecution witness in this case after being arrested.

15.  Counsel tells the court that D1 was induced by a fellow classmate to participate in this offence and he foolishly accepted the offer. He was not the mastermind nor was he the instigator of the offence. He only played a very minor role. He followed an unknown man’s instruction and sat on the front passenger’s seat of the car to deliver the drugs.

16.  Learned counsel also informs the court that D1 was detained for 5 months before bail was granted to him. During the detention period, he had the chance to further reflect on his foolishness. D1 now feels extremely repentant and regretful for what he had done. The defence invites the court to consider that it is more important in this case to rehabilitate D1 than to severely punish him as a deterrent.

17.  Two mitigation letters, written by D1 and his mother, were produced and had been duly considered by the court. Defence counsel invites this court to consider a lenient sentence such as an admission to detention centre.

18.  Miss Cheng, counsel for D2, has also filed very detailed written submission and made oral submission in mitigation in court. She first submitted to the court that 2.15 grammes of the 9.43 grammes of the cocaine was for D2’s self-consumption. She produced a urine test report which shows D2’s urine test being taken on 29 December 2022 at Lai Chi Kok Reception Centre. He tested positive for cocaine.

19.  Counsel said the dangerous drugs for D2’s own consumption consisted of Exhibit 2 (containing 1.2 grammes of cocaine), Exhibit 11 (containing 0.95 grammes of cocaine, and Exhibit 13 (containing traces of cocaine).

20.  It was said that the 2^nd defendant had a history of taking cocaine for around five years. Apart from counsel’s submission at Bar table, D2 elected not to give evidence on the claim of self-consumption.

21.  In her mitigation, counsel submits that the 2^nd defendant was not trafficking simply to make money to satisfy his drug addiction but rather he was seduced into working as courier, in playing the role of a driver within the drug trafficking enterprise because cocaine would be available for him. He had no savings, no other financial ability to purchase dangerous drugs given homelessness from around late 2019. So he can be seen as a victim of his own former reliance on cocaine.

22.  Learned counsel told the court that since his graduation from Form 5, D2 worked as a driver for decades. He had once been married with one son but subsequently was divorced. Around 2017, he became a taxi driver and met a female with a dangerous drugs habit. She introduced him to cocaine. During the COVID-19 pandemic, he lost all his savings and ended up homeless as a street sleeper. He received support from social workers. They managed to help him find a home with work as a cleaner but when he lost the job, he ended up homeless again. He met friends who introduced him to be a licence holder for a gambling establishment. There, he met the person who told him to be the driver to traffick dangerous drugs.

23.  Two mitigation letters written by D2 were produced to court. In the letters, D2 stated that he committed one mistake after another. When he was on remand, he saw the illnesses and sufferance endured by other persons on remand and understood the harm of dangerous drugs. He states that after imprisonment, he will stay away from dangerous drugs and turn over a new leaf.

24.  In respect of the previous suspended sentence, Miss Cheng accepted that D2 was in breach of the suspended sentence. She, however, submitted that these offences are unrelated to drug trafficking.

25.  Counsel submits that the starting point for the present offence for D2 should be around 5 years and 5 months taking into account the suspended sentence. If the claim for self-consumption is accepted, the sentence should be reduced to 5 years and 2 months with a reduction of around 20 months for his plea of guilty.

26.  Trafficking in dangerous drugs is a very serious offence, particularly when the present case involved a significant quantity of dangerous drugs, ie, 9.43 grammes of cocaine and 19.73 grammes of ketamine.

27.  The Court of Appeal has laid down guidelines for determining the length of imprisonment for trafficking in different types of drugs. The tariff guideline for trafficking in cocaine is set out in the case of Rojas[3] and Lau Tak Ming[4] and for ketamine in Hii Siew Cheng[5].

28.  For up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years’ imprisonment. Arithmetically, the starting point for trafficking of 9.43 grammes of cocaine should be about 57 months.

29.  For 10 to 50 grammes of ketamine, the sentence ranges from 4 to 6 years’ imprisonment. Arithmetically, starting point for trafficking of 19.73 grammes of ketamine would be about 53 months.

30.  As the case involves a combination of drugs, I adopt the approach set out by the Court of Appeal in the case of Islam Majharul[6]. I agree that the combined approach, as against the individual approach, should be used in the present case and I will use cocaine, being the more potent drug, as the base drug in considering the sentence.

31.  The next step is to determine how much of the starting point for cocaine should be increased to allow for ketamine being also trafficked by the defendants.

32.  Having considered the results of the three cross-check tests provided by Mr Davies, I adjust the starting point upwards by 8 months, arriving at a total of 65 months’ imprisonment. This starting point is calculated on the basis that both defendants were playing the role of a courier otherwise a higher starting point may be adopted. I now come to the sentences of each defendant separately.

D1

33.  I have carefully considered everything said by Mr Davies, including that D1 was only 15 years old when he committed the offence; he made frank admissions under arrest at the scene; he has a clear record; he fully cooperated with the police; he also indicated that he was willing to be a prosecution witness in the case. Mr Davies asked the court to impose a lenient sentence such as an admission to detention centre in his written submission.

34.  In view of the young age of D1, I called for a training centre suitability report to provide the court with further information. I did not call for detention centre or rehabilitation centre reports as the relatively short detention period in these two centres, in my view, cannot properly reflect the seriousness of the offence.

35.  The training centre report is now before the court, it reveals the full background of the 1^st defendant. Relevantly, it shows that D1’s parents were busily engaged in their work and they were unable to exercise adequate supervision and guidance on D1.

36.  D1 showed no interest in studies and was poor in his school performance, having to repeat Form 3 twice. The assessment officer of the Correctional Services Department considers D1 suitable for detention in training centre. Mr Davies asked the court to adopt the recommendation.

37.  D1 is a very young person, he was only 15 when he committed the offence and has now turned 16. While section 109A of the Criminal Procedure Ordinance does not apply to trafficking in dangerous drugs which is an excepted offence, a court must exercise great care before committing a young offender to prison.

38.  That said, the Court of Appeal also restated that even for a young offender, a training centre order should not be imposed for trafficking in substantial quantity of dangerous drugs, save in rare cases.

39.  In the present case, D1 should be regarded as extreme youth for the purpose of mitigation when he committed the offence. He has a clear record. He has also been remanded in custody for about 5 months before being granted bail and a further 16 days for the purpose of preparation of the training centre report.

40.  He made confession as soon as he was arrested. He was cooperative to the police. It is not disputed that he made a non-prejudicial statement to the police. I accept that he is now remorseful.

41.  I am of the view that as D1 shows no interest in school studies, he should learn a skill of trade so that he can acquire a job more easily and reintegrate into the community after he is released from custody. I think he will benefit from a disciplinary training in the training centre. The maximum detention in the training centre is 3 years and the average is around 15 to 18 months followed by a 3-year supervision after release.

42.  Having considered all the mitigation put forward by Mr Davies and the recommendation of the Correctional Services Department, I accept that D1 having shown genuine remorse deserves a chance of rehabilitation by disciplinary training in the training centre.

43.  I am satisfied that this is one of those rare cases that a training centre order would be in the interest of the 1^st defendant as well as the community. Now for these reasons, D1 is sentenced to detention in a training centre.

D2

44.  I have carefully considered everything said by counsel for D2, including D2’s personal circumstances and financial difficulties he faced during the COVID-19 pandemic period as emphasised in mitigation. However, given the seriousness of the offence, I do not find his background and financial predicament, a valid mitigating factor in the case.

45.  The quantity of dangerous drugs involved in this case was not small and D2 committed the offence together with another. Accepting that D2 was not the mastermind, he played a significant role in delivering of the dangerous drugs by driving the car which he obtained from his friend.

46.  As I said in sentencing D1, the initial starting point I would adopt for trafficking of the dangerous drugs in this case would be 65 months by arithmetic calculation. What makes it more serious is that D2 committed the offence together with a minor. Indeed when D1 appeared in court, one would no doubt find him a very young person. D2, a 47-year-old adult must appreciate that when he met D1.

47.  Section 56A of the Dangerous Drugs Ordinance empowers the court to enhance the sentence of a defendant for trafficking in dangerous drugs when a minor is engaged in the commission of the offence. I took into account what the Court of Appeal said in cases, including HKSAR v Ng Hon Keung[7] and HKSAR v Ho Pak Hong[8].

48.  On the facts admitted by D2 in court and the information before the court, I am satisfied beyond reasonable doubt that section 56A is applicable in this case. I accept the submission of Miss Cheng that the enhancement should not be more than 3 months in circumstances of the case. Accordingly, the starting point is enhanced by 3 months to 68 months’ imprisonment.

49.  D2 claimed part of the dangerous drugs was for his own consumption, ie, Exhibit 2, 11 and 13. A plea of self consumption as mitigation must be proved by cogent evidence. Miss Cheng submitted that D2’s urine test report showed that his urine taken at Lai Chi Kok Reception Centre was cocaine positive. I accept that D2 was a drug dependent on cocaine. It, however, does not follow that some drugs in his car was for his own consumption.

50.  E13 found on the driver’s seat contained only traces of cocaine. It did not add any more weight to the total quantity of the dangerous drugs alleged in the charge, and therefore does not affect the sentence anyway.

51.  On the other hand, however, E2, containing 1.2 grammes of cocaine was contained in five plastic bags sealed in one larger bag kept at the storage area at the door of front passenger’s seat. Also, E11 containing 0.95 grammes of cocaine was contained in four plastic bags sealed with other drugs in a black plastic bag found at the gloves box on front passenger’s seat. All these dangerous drugs were near to D1, not D2. I do not see any good reason why D2 had to put a dangerous drug he intended for his own consumption together with other dangerous drugs intended for trafficking purpose near to D1.

52.  Moreover, under reminded caution, D2 only stated that the dangerous drugs belonged to D1. There is no evidence that he ever told the police that part of the dangerous drugs found by police was for his own consumption.

53.  On the totality of the evidence, I do not accept that Exhibit 2 and 11 were for D2’s own consumption. While I exclude Exhibit 13 from the charge, the starting point remains the same as 68 months’ imprisonment.

54.  As said, the personal circumstances of D2 in the present case cannot be accepted as mitigating factor. The only valid mitigation is D2’s plea of guilty for which I will give him the full one-third discount. The sentence is therefore reduced and rounded down to 45 months’ imprisonment.

55.  Miss Cheng did not dispute that D2 was in breach of the suspended sentence for 4 weeks imposed on him. She said those convictions were unrelated to drug trafficking, but that is not a good reason not to activate the sentence.

56.  I therefore order that the 4 weeks’ imprisonment passed and suspended on 14 April 2022 be now activated in full to run consecutively to the sentence passed in the present case. The total sentence D2 has to serve is 45 months and 4 weeks’ imprisonment.