HKSAR v. LI CHO WING

DCCC 910/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 910 OF 2016

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REASONS FOR SENTENCE

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

2.  The 1st charge alleged that the defendant on 9 July 2016 at Kwai Chung, New Territories unlawfully trafficked in ketamine.  The 2nd charge alleged that on 11 July 2016, outside Ground Floor, No 16 Boundary Street, Mongkok, the defendant unlawfully trafficked in 50.27 grammes of ketamine.

3.  The defendant admitted the following facts.  At about 9.10 pm on 11 July 2016, he was stopped and searched at the place described in the 2nd charge.  He was found to have (a) six plastic bags containing a total of 5.47 grammes of ketamine in the left front pocket of his trousers; (b) 15 bags containing 30.4 grammes of ketamine in his rucksack; and (c) six bags containing 31.4 grammes of ketamine inside the pocket of the rucksack.  He was also found to have $13,070 and a mobile phone.  The street value of the abovementioned 27 bags of ketamine seized was $32,296.60.  The calculation is based on the mixture but not the narcotic content of the ketamine.

4.  Under caution at scene, the defendant said that he delivered the dangerous drugs for a reward of a few hundred dollars.  This is the 2nd charge.  In a subsequent cautioned video-recorded interview, the defendant confirmed that all the dangerous drugs seized were in his physical possession at the time of arrest.  He was fully aware that they were dangerous drugs.  He claimed that he searched for a job through Facebook and someone invited him to work and to earn quick money.  He then came to know a person called Ah Lung who told him that quick money could be earned by delivering dangerous drugs.  The defendant would follow Ah Lung’s instructions to deliver dangerous drugs and be rewarded a few hundred dollars each time.

5.  On 9 July 2016, he followed Ah Lung’s instructions to collect 36 small plastic bags and 6 plastic bags totalling 42 bags of dangerous drugs from an unknown person in a game club in Kwai Chung.  After that, he delivered 15 small packets of dangerous drugs to another unknown male in Kwai Chung and collected the sale price of $13,000.  He retained the sum of money and the remaining dangerous drugs until further instructions from Ah Lung.  This is the 1st charge.

Previous Conviction

6.  The defendant has one previous criminal conviction, that is on 3 August 2016, the offence of obtaining property by deception for which he received probation for 15 months.  

Mitigation

7.  Mr Tam on behalf of the defendant submitted that the defendant, aged 22, was educated up to Form 6.  He sat for the DSE open examination in 2015.  He had once worked as a part-time courier earning six to seven thousand dollars a month.  He contributed half of his salary to his family.  He has a plan to engage in further study in the field of marketing and accounting.

8.  In respect of the present offence, he was remorseful and co-operative. He volunteered to the police the history of how he came to know Ah Lung, how he followed Ah Lung’s instruction and how he made the delivery of dangerous drugs.

9.  Three letters written by social worker, a primary school teacher and a speech therapist were submitted, and I have carefully considered the same.  It is revealed in these letters that the defendant had suffered spastic diplegia and dyslexia.  He studied in a special school. 

10.  I invited Mr Tam to provide the court with more information in relation to the defendant’s health condition.  He said that the defendant had a surgery to his back in July 2008.  He has recovered and he walks unaided.  He does not rely on any medication but needs to attend follow-up consultations. Besides, he has normal intelligence. 

11.  In respect of the trafficking in Charge 1, Mr Tam did not make any submission on the approach to sentence.  In determining the appropriate starting point for sentence for Charge 1, I asked Mr Tam if the court could draw reference to the street value or the ketamine involved in Charge 2 to determine how much ketamine was likely to be involved in Charge 1.  After discussions, Mr Tam conceded reference could be made to the ketamine involved in the small packets of the dangerous drugs in Charge 2.  He then submitted that the starting point for sentence for Charge 2 should be 6 years and for Charge 1 should be 4 to 5 years.

Reasons for Sentence

12.  In passing sentence, I have considered all that was said on behalf of the defendant by Mr Tam and all that was written in the letters.

Starting Point

13.  In Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323, the Court of Appeal laid down sentencing guidelines for trafficking in ketamine.  Where the narcotic content is between 10 grammes to 50 grammes of ketamine, the sentence after trial falls within the range of 4 to 6 years.

Charge 1

14.  The amount of ketamine in Charge 1 is unknown.  The defendant admitted to the police that he delivered 15 small packets of dangerous drugs to another unknown male in Kwai Chung and collected the sale price of 13,000.  He retained the sum of money and the remaining dangerous drugs until further instructions from Ah Lung.  On the day of his arrest, he had $13,070 on him. 

15.  In order to figure out how much ketamine was involved in Charge 1, attempt was made to refer to the street value of the ketamine seized in Charge 2. However, Mr Hui, counsel for the prosecution, submitted that the street value of $32,926 refers to the total mixture of the ketamine but not the narcotic content.  As such, this court could not calculate (by reference to the street value and the amount which the defendant said he received by the delivery of 15 packets of dangerous drugs), the narcotic content of ketamine likely involved in Charge 1. 

16.  Alternatively, it is noted that there were 21 out of the 27 bags of dangerous drugs the defendant trafficked in Charge 2 contained small amounts of ketamine.  Each packet contained slightly less than 1 gramme.  As such, the 15 small packets of dangerous drugs delivered by the defendant in Charge 1 might involve a narcotic content of approximately 15 grammes of ketamine. 

17.  I do not have a government chemist’s certificate to tell me how much ketamine was involved.  However, the aforesaid calculation and the resulting figure assist me in sentencing.  I stress the amount is not particularised in the charge, but the defendant has on his own admission to the police delivered 15 small packets of dangerous drugs, assisted the court to gauge the scale and seriousness of the offence.  This approach was agreed by Mr Tam.

18.  As such, I take that there was approximately 15 grammes of ketamine involved in Charge 1.  The sentencing range for trafficking 10 grammes to 50 grammes of ketamine is between 4 and 6 years.  Trafficking in 15 grammes of ketamine would attract a starting point of 50 months.  I would adopt 50 months as the starting point for sentence for Charge 1.

Charge 2

19.  It is easy for Charge 2.  The narcotic content of the ketamine involved is 50.27 grammes.  In light of Hii Siew Cheng, I adopt 6 years or 72 months, as the starting point for sentence. 

Overall Starting Point

20.  The total amount of ketamine involved in both charges is approximately 65 grammes.  This will attract an overall starting point of sentence of 74 months’ imprisonment. 

Discount for Sentence

21.  The judgment HKSAR v Ngo Van Nam CACC 418/2014 was delivered in September 2016.  The Court of Appeal said that for those defendants who indicate their pleas of guilty on the plea-day hearing in the District Court are entitled to a full one-third discount of sentence.

22.  In the present case, the defendant first appeared in the District Court plea-day hearing on 25 October 2016.  On that day, he was legally represented and the defence applied for an adjournment for four weeks.  On 22 November 2016, another plea‑day hearing, the defendant indicated his plea of guilty to both charges.  The case was then adjourned to today for plea and sentence.  In light of the circumstances, he is entitled to a full one-third discount of sentence from the starting point.

23.  On Charge 1, the starting point is 50 months.  After one-third discount, he is sentenced to 33 months’ imprisonment, 3-3. 

24.  It is noted that the defendant made a confession to an offence in respect of Charge 1 of which the police were not aware.  In HKSAR v Hui Chi Tong CACC 14/2007, the Court of Appeal said at paragraph 22:-

“But for the voluntary confession, the applicant would not have been found guilty of 1st charge. Such voluntary admission, coupled with a plea later, showed genuine remorse. It is in the public interest to encourage an offender to own up to his misdeed and to face the consequence. The most effective way of giving encouragement is to give a greater than normal discount upon a plea. In all the circumstances of this case, we are of the view that a further discount of 2 months is appropriate.”

25.  I will give a further discount of 5 months for Charge 1.  The sentence is now reduced to 28 months’ imprisonment.

26.  On Charge 2, the starting point is 72 months.  After one-third discount, he is sentenced to 48 months’ imprisonment.

27.  The fact that the defendant has to attend follow-up medical consultations is not a mitigating factor in the given circumstances.  As Mr Tam said, the defendant walks unaided after the surgery in 2008, almost 10 years ago.  He does not rely on any medication, and he has normal intelligence that he had attended the DSE examination which is an open examination for local students who have finished Form 6.

Totality

28.  As I previously said that the overall starting point for both charges should be 74 months’ imprisonment, the sentence after one-third discount is 49 months’ imprisonment.  It is more or less the same as the sentence imposed for Charge 2, that is, 48 months. 

29.  Mr Hui for the prosecution referred this court to HKSAR v Wan Lau Mei CACC 389/2013.  Having considered all the circumstances of the case, including that the ketamine involved in both charges which the prosecution has rightly submitted they came from the same batch of dangerous drugs he received on 9 July, I consider that concurrent sentences should be imposed.  

30.  On Charge 1, the defendant is sentenced to 28 months’ imprisonment.  On Charge 2, he is sentenced to 48 months’ imprisonment. Both sentences are to run concurrently with each other, making a total of 48 months’ imprisonment.