HKSAR v. LAW CHEUK HEI

DCCC 485/2021

[2021] HKDC 1006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 485 OF 2021

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a single charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. By the particulars of the offence, the defendant has admitted that he unlawfully trafficked in the dangerous drugs in the quantity of 5.07 grammes of cocaine and 11.06 grammes of ketamine. That is the narcotic quantity of the mixtures contained in the particulars of offence.

2.  The facts are straightforward.  The defendant was intercepted whilst in charge of a vehicle in Un Chau Street in Kowloon.  His presence there was found to be suspicious.  A search of the defendant was conducted, finding some quantity of cocaine inside the left pocket of his jacket. 

3.  A further search of the vehicle was conducted by police officers and also a police dog. 

4.  Totally, we find that some 38 resealable plastic bags containing a total of 5.07 grammes of cocaine (narcotic value estimated at $11,381)  were found and a further 24 resealable plastic bags containing a total of 11.06 grammes of ketamine (that is narcotic value estimated at a value of $9,954)  were also found in the vehicle. 

5.  Together with that, there was some cash, 16,750, a notebook, and further cash under the driver’s seat. 

6.  A search of the defendant’s premises found further mobile phones and a tablet computer that was found in fact in the front part of the vehicle.  All these facts have been admitted by the defendant. 

7.  As far as the defendant’s particulars are concerned, he is aged 38 years old.  He is a person of clear record.  He has worked at Wellcome and also a telecommunication technical worker.  He was unemployed at the time of his arrest.  In mitigation, it would appear the defendant had been working as a driver but the pandemic had led to a lack of employment, and I am told he was short of money. 

8.  In mitigation, the defendant’s background as put forward is as follows.  He is single and 38 years old, lives with a friend.  He has family, received education to Form 5 level, working as an Uber driver from 2018 to 2020, has worked as a private driver as well.

9.  The defendant has good family relationships.  He has a supportive family.  I have a number of letters in support from his family, which I have read.  They speak well of him.  The defendant has been described as a helpful and pleasant person and naturally, the defendant has a clear record up to the age of 38, which shows he has led, up to this point of time, a law-abiding life and it is unfortunate that somebody should become involved in this kind of serious criminality at that age. 

10.  The defendant puts before the court that he is not a drug addict.  He would not have taken or used part of the drugs for his own consumption.  It was also said there was no aggravating factor such as an international element, previous convictions or the defendant being a Form 8 holder.  Of course, there is one aggravating factor in that the defendant was trafficking in a mixture of drugs, namely cocaine and ketamine. 

11.  The approach to sentencing in cases of this nature is largely set out in case law.  As far as the starting points for sentence to be adopted, they can be found in various guideline cases.  I refer to the cases in respect of cocaine of HKSAR v Abdallah Tatu Said [2016] 2 HKLRD 615 which deals with the starting points of trafficking in cocaine in various quantities.  Here, we are concerned with a sum of a total of 5.07 grammes of cocaine which would lead to a starting point of between 2 to 5 years, it being a quantity below 10 grammes. 

12.  As far as the trafficking in ketamine is concerned, reference is made to the case of HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1.  Here, we are dealing with a quantity of between 10 to 50 grammes of ketamine, namely 11.06 grammes, which would lead to a starting point of between 4 to 6 years.  Of course, the starting point will be at the very lowest end of that guideline sentence. 

13.  The calculation done, which seems to be quite clearly right, is that if the starting point is adopted for the individual drug quantities, the starting point for 5.07 grammes of cocaine would be in the region of 3½ years and the starting point for 11.06 grammes of ketamine would be just above the starting point of 4 years’ imprisonment. 

14.  Here, of course, the court is having to deal with a combination of drugs, sometimes described as a cocktail of drugs.  A number of different approaches have been taken to sentencing for cocktail of drugs, and they are broadly described as being the individual approach where the appropriate starting point is determined for each type of dangerous drug and they are simply combined into an overall starting point. 

15.  And secondly, the second approach is the combined approach where a starting point is normally determined for the most serious type of drug (we call that the base drug), then adjust it upward in the light of the quantity of any other less serious drug in order to arrive at the ultimate starting point.  There are limitations to the combined approach, for example, where one of the drugs is of an insignificant quantity or where the two types of dangerous drugs are not necessarily dissimilar. 

16.  Because problems can arise in the combined and individual tests, there are further tests that have been set out in the case of HKSAR v Chan Yuk Leong, CACC 318/2013, namely the absurdity test, the conversion test and the ratio test.  And generally, the end result arrived at by the court should be subjected to these tests to see if on a common-sense basis the sentence is appropriate. 

17.  Of course, in mitigation it can be seen in the written mitigation that taking the individual approach would lead to a starting point of over 6 years, 7 years and 6½ months.  Clearly, that would be inappropriate, just failing the absurdity test. 

18.  I consider that in this case the combined approach is the correct approach to take and that if one adopted the starting point of just above 4 years for the 11.06 grammes of ketamine, that would be the equivalent of a starting point of around 6.8 grammes of cocaine, leading the court to approach this quantity of drugs as if it were a total quantity of around 11.87 grammes of cocaine.  Defence submission is that in that case the starting point should be around 5 years and 1½ months. 

19.  There is one factor that must be considered in addition to the combined approach and that is the fact that we are dealing with a combination or a cocktail of drugs which in itself is an aggravating factor. Nevertheless, the submission put for me is that I should perhaps ignore that and deal with this case, having regarding to the defendant’s clear record, which is a compelling mitigating factor. 

20.  I have taken all these factors into account.  I have determined the appropriate starting point for sentence in this case should be one of 63 months’ imprisonment.  After the defendant’s plea of guilty is taken into account, he is of course entitled to a full discount for that, leading to a final sentence of 42 months’ imprisonment.  That is the sentence I will impose, 42 months’ imprisonment.