HKSAR v. MAN KAM TO

DCCC 232/2021

[2021] HKDC 1159

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 232 OF 2021

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REASONS FOR SENTENCE

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1.  Mr Man faces three charges of Trafficking in a dangerous drug on a Charge Sheet before me, all contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.  The particulars of Charge 1 are that he, on 19 October 2020, at Tung Tau (II)  Estate Multi-storey Car Park, Tung Tau (II)  Estate, Wong Tai Sin, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 1.16 grammes of a solid containing 0.93 gramme of ketamine.

3.  The particulars of Charge 2 are that he, on the same day, on a private car bearing registration mark VJ1666, at Parking Space No 314 of the same Tung Tau (II)  Estate Multi-storey Car Park, unlawfully trafficked in a dangerous drug, namely 1.02 grammes of a solid containing 0.62 gramme of cocaine.

4.  The particulars of Charge 3 are that he, on the same day, on a private car bearing registration mark TY426, at Parking Space No 211 of the same Tung Tau (II)  Estate Multi-storey Car Park, unlawfully trafficked in a dangerous drug, namely 11.7 grammes of a solid containing 9.10 grammes of ketamine.

5.  He pleaded guilty to possession in respect of Charge 1, which plea was accepted by the prosecution in satisfaction of Charge 1.  In addition, he pleaded guilty to Charges 2 and 3 as they are on the Charge Sheet.

Facts admitted by Mr Man

Charge 1

6.  On 19 October 2020, at about 0240 hours, at a multi-storey car park, police spotted Mr Man alight from a white car TY426.  He was stopped and searched.  A body search of Mr Man unearthed the following:-

(a)  One used chewing gum packet containing 3 resealable plastic bags containing a total of 1.16 grammes of a solid containing 0.93 gramme of ketamine;

(b)  Two car keys of TY426; and

(c)  One car key of VJ1666.

7.  Under caution at the scene, Mr Man said there was nothing in the white car (TY426); that the drugs were in the green VJ1666.

Charge 3

8.  Police then searched TY426.  In the storage compartment next to the driver’s seat, they found one used candy packet containing 30 resealable plastic bags containing 11.7 grammes of a solid containing 9.10 grammes of ketamine.  Under caution, Mr Man said that they were leftovers from that day’s distribution.

Charge 2

9.  Mr Man and police party then went to VJ1666 parked at the same car park.  Police searched that car with the consent of Mr Man.  In the storage compartment next to the driver’s seat, they found one used candy packet containing 8 resealable plastic bags containing 1.02 grammes of a solid containing 0.62 gramme of cocaine.

10.  Under caution, Mr Man said he brought the cocaine and ketamine out for selling to others.

Arrest and other matters

11.  At the time of arrest at 0318 hours on 19 October 2020, Mr Man was in possession of HK$15,397.30, CNY3,223 Yuan and two mobile phones.

12.  The total estimated prices of the ketamine and cocaine seized were respectively HK$6,314 and HK$1,793.

13.  Mr Man now admits he possessed the dangerous drugs under Charges 2 and 3 for the purpose of unlawful trafficking.

Criminal record

14.  Mr Man has a clear record.

Antecedents

15.  Mr Man is aged 20 now and at the time of the offences, educated to F3 level, unemployed at the time of arrest.  He had been a construction worker and a hairdresser.  Mr Man lived with his family in public housing in Wong Tai Sin.

Mitigation

16.  Mr Victor Ho of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Man.

17.  The following is a summary of the mitigation submissions.

18.  The biggest mitigation factor is Mr Man’s plea of guilty entitling him to a 1/3 discount.

19.  Mr Man was cooperative with the police and made a full and frank admission.  He has been detained since arrest.  He resided with his parents and his younger brother.  Mr Man has been financially supported by his parents since 2018.  Mr Man is remorseful and wishes to turn a new leaf in his life.

20.  Mr Ho on behalf of Mr Man prayed that the court would order all the sentences to run concurrently with one another and pass down the most lenient sentence.

21.  Mr Ho by referring to the relevant guidelines submitted that by adopting the traditional approach, the starting point of trafficking in 9.10 grammes of ketamine (Charge 3)  should be 3 years 9 months; and the starting point of trafficking in 0.62 gramme of cocaine (Charge 2)  should be 2 years 2 months.

22.  Mr Ho referred to para 24 of HKSAR v Islam S M Magharul [2020] HKCA 300 which discusses the use of the combined approach when dealing with a case involving 2 or more types of drug:-

“24. The combined approach involves the calculation of the applicable sentence for the more or most serious drug (in terms of potency), and then adjusting the sentence upwards to take into account significant quantities of other (less serious)  drugs. In carrying out this task, the sentencing court should take a common sense approach in determining which drug is to be the base drug in order to calculate the starting point. There may be cases where the more or most serious drug is of such a small quantity that it would be unrealistic to use it as the base drug. As stated, it will be a matter of common sense.”

23.  Mr Ho submitted that in the present case, the more appropriate approach is the combined approach rather than the individual approach; however, he submitted, for the sake of fairness, the three tests namely the absurdity, conversion and ratio tests should also be considered.

24.  Mr Ho then worked out the results of the three tests.  For the absurdity test, the result for all ketamine was 3 years 11 months; the result for all cocaine was 4 years 11 months.

25.  For the conversion test, and Mr Ho has only worked out that part of the conversion test relating to the conversion of all drugs into ketamine; the result is 48 months (for 11.1 grammes of ketamine).

26.  For the ratio test, the result worked out by Mr Ho was 47.4 months.

27.  Mr Ho concluded by saying by adopting the three tests, the starting point of Charges 2 and 3 is about 4 years for both drugs.

28.  Mr Ho also submitted that there is no sentencing tariff for possession of the 0.93 gramme of ketamine in this case.  However, when reminded by the court that there is a usual sentence of 12 to 18 months’ imprisonment for possession of a dangerous drug, Mr Ho acknowledged that that is the case depending on the amount and subject to increase on the ground of latent risk. Mr Ho submitted that Mr Man kept the ketamine under Charge 1 for use as a pastime and Mr Ho accepts that there is some latent risk here.

29.  Mr Ho handed up two mitigation letters (in Chinese)  on behalf of Mr Man written respectively by Mr Man himself and a Catholic missionary.  The contents are generally that Mr Man is remorseful and wants to turn a new leaf and seeks a lighter sentence to facilitate an early return to society.

Sentence

30.  Trafficking in a dangerous drug is a serious offence.  It is made more serious by the presence of more than one type of drug, as in this case.

31.  By using the individual approach, the cumulative sentence after trial for Charges 2 and 3 would have been 5 years 11 months which would be considered as excessive in all the circumstances.

32.  Clearly, the combined approach is the more appropriate approach here.

33.  I have independently worked out the results of the 3 counter-checking tests.

34.  For the absurdity test, I obtained more or less the same results as Mr Ho has obtained.

35.  For the conversion test, when all drugs are converted to ketamine, the result is 48.57 months; when all the drugs are converted to cocaine, the result is 47.83 months.  Both are close enough to the single result obtained for ketamine by Mr Ho.

36.  For the ratio test, I obtained the result of 48.08 months which is again close enough to the result obtained by Mr Ho.

37.  In HKSAR v Chan Yuk Leong, CACC 318/2013, two aggravating factors were re-emphasized in the sentencing of an offender for trafficking in a cocktail of drugs, namely (1)  the ability of the trafficker to cater to a wider market; and (2)  the effect on users of combinations of dangerous drugs.  As regards (2), I bear in mind that the two types of drugs in this case were not placed in the same packet but were kept quite separate.

38.  All things considered, I agree to Mr Ho’s submission that 48 months may be used as the global starting point for Charges 2 and 3.

39.  As for the conviction under Charge 1 ie possession of a dangerous drug, the usual sentence after trial is between 12 and 18 months’ imprisonment subject to latent risk.

40.  In this case, I have to consider what would happen to the global sentence on Charges 2 & 3 if the 0.93 gramme of ketamine under Charge 1 was added to the drugs in the trafficking charges as if it forms part of them.  I am of the view that it would make very little difference to that global sentence.

41.  In the premises, I will make the sentence on Charge 1, whatever it might be, run concurrently with the sentences on Charges 2 and 3.

42.  Mr Man pleaded guilty in good time, hence earning to himself the 1/3 discount in sentence.  Being a person of previous clear record would not avail him of further credits under the trafficking charges; but I can give him a little further discount in respect of the possession conviction.  I can see no other mitigating factors of weight to justify any other discounts.

43.  I impose the following sentences on Mr Man.

(Mr Man, please stand)

44.  For Charge 1, I adopt a starting point of 13 months and reduce it to 8 months and 20 days because of his plea.  I further take off 20 days because of his previous clear record.  So, 8 months is the imprisonment term.

45.  For Charge 2, I adopt a starting point of 26 months and reduce it to 17 months and 10 days which is the imprisonment term.

46.  For Charge 3, I adopt the starting point of 45 months and reduce it to 30 months which is the imprisonment term.

47.  I order that 2 months of the sentence on Charge 2 do run consecutively to the sentence on Charge 3.  I further order that the sentence on Charge 1 do run concurrently with the sentences on Charges 2 and 3.  The aggregate sentence is therefore 32 months’ imprisonment.