HKSAR v. CHAN MAN HO

DCCC 395/2021

[2021] HKDC 926

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 395 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of trafficking in a dangerous drug, namely 10.21 grammes of a solid containing 7.23 grammes of cocaine and 14.5 grammes of a solid containing 12.8 grammes of ketamine, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

Admitted Facts

2.  On 25 November 2020 at around 01:00 hours, PC24385 (PW1)  and a party of police officers were conducting anti-crime patrol at G/F, Cheong Yuen Building, No 309 Tung Chau Street, Sham Shui Po. PW1 spotted the defendant sitting at the driver seat of a private car, registration mark WZ1650 (the Car)  and looking around constantly.  Feeling suspicious, PW1 intercepted the defendant for enquiry.

3.  Upon a body search, one resealable plastic bag containing 20 small resealable plastic bags was found tucked inside the waistband of the defendant’s trousers.  The solids inside these plastic bags were suspected to be dangerous drugs.

4.  The following items were found inside the Car:-

(a)  One resealable plastic bag containing 50 small resealable plastic bags containing solids suspected to be dangerous drugs (found at the front passenger seat compartment); and

(b)  One resealable plastic bag containing 21 small resealable plastic bags containing solids suspected to be dangerous drugs (found at the driver seat compartment).

5.  Under caution at the scene, the defendant said (i)  he sold “Coke” because he had financial difficulties.  He wanted to earn money for a living and asked for a chance (ii)  the “Coke” belonged to him and asked for a chance.

6.  At the subsequent video recorded interview, the defendant remained silent.

7.  At the time of the arrest, the defendant had in his possession HK$10,998.20, RMB 665 and 4 mobile telephones.  Cash in the sum of HK$26,480 was found inside the Car.

8.  The Government Chemist subsequently confirmed that:-

(a)  The solids inside the 20 small resealable plastic bags found tucked inside the waistband of the defendant’s trousers was a total of 2.98 grammes of a solid, containing 2.12 grammes of cocaine.

(b)  The solids inside the 50 small resealable plastic bags found in the front passenger seat compartment was a total of 7.23 grammes of solid containing 5.11 grammes of cocaine;

(c)  The solids inside the 21 small resealable plastic bags found at the driver seat compartment was a total of 14.8 grammes of a solid containing 12.8 grammes of ketamine.

9.  The estimated street price of the cocaine and ketamine were HK$17,641 and HK$8,205 respectively.

10.  The defendant was in possession of all the drugs for the purpose of unlawful trafficking.

The Defendant’s Background

11.  The defendant is now 62 years old.  He only has one previous criminal conviction in 1976, which is not similar.  He was bound over for a period of one year.

12.  The defendant has been working as a driver and part time renovation worker all his life.  He used to earn around HK$15,000 from the renovation work and a few thousand dollars from driving.  Counsel stated that because of the recent economic downturn, the defendant’s income has been greatly reduced.

13.  The defendant has 2 children with his former wife, a son aged 25 (who started working after he graduated Form 5 but has now resumed studying)  and a daughter aged 22 who has just graduated from university and is now looking for work.  He still has a close relationship with his children and has always been responsible for paying his daughter’s school fees.

14.  The defendant has remarried and his current wife is a housewife.  They have been married for about 10 years.  Until very recently, his wife was unable to work because she had to look after the defendant’s mother.

Mitigation

15.  Counsel informed the court that the defendant has been advised of the relevant sentencing guidelines.  He understands that the courts have limited leeway when dealing with these offences.  Counsel urged the court to adopt the combined approach, instead of the individual approach when assessing the starting point.

Discussion

16.  When the court is dealing with a case which involves a cocktail of drugs.  There are two approaches in assessing the starting point:-

(i)  The Individual Approach; and

(ii)  The Combined Approach.

17.  Which approach is appropriate would depend on the circumstances of the case, although the combined approach would often be the correct one when the court is dealing with a cocktail of drugs.  The sentence may be checked against:-

(a)  the absurdity test

(b)  the conversion test; and

(c)  the ratio test.

18.  The Court of Appeal has already laid down guidelines for the different kinds of dangerous drugs.  The guidelines in respect of heroin are applicable to cocaine.  According to R v Lau Tak Ming [1990] 2 HKLR 370 and AG v Rojas [1994] 1 HKC, the starting point for 7.23 grammes of cocaine is 4 years and 2 months.  Under the guidelines in HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1, the starting point for 12.8 grammes of Ketamine is 4 years and 2 months.

19.  If the court were to adopt an individual approach in the present case, the appropriate notional starting point would be 8 years and 4 months.

20.  The Court in HKSAR v Islam S M Majharul [2020] HKCA 300 (CACC 67/2019, 3 June 2020)  gave guidance on the 7-step methodology to be used when adopting the combined approach:-

(i)  Determine the base drug to be used to calculate the starting point of the two drugs. This requires determining which of the two drugs is the “more or most serious drug”, in terms of potency;

(ii)  Calculate the starting point according to the quantity of the base drug in accordance with the relevant sentencing guidelines;

(iii)  Determine by how much this starting point should be increased to allow for the quantity of the other drug. This is ultimately an exercise of sentencing discretion and should be done by:

(a)  Considering the quantity of the other drug and the relevant sentence according to that drug’s sentencing guidelines and by reference to the starting point adopted for the base drug;

(b)  Conducting an overall comparison of the sentencing guidelines of the two drugs and their related ranges of sentence;

(c)  Examining the results of the absurdity test, the conversion test and the ratio test;

(d)  Taking all these matters into account to calculate a reasonable and realistic increase to the starting point.

(iv)  Determine the level of enhancement to the starting point for the aggravating factor that the trafficking involved two or more serious drugs;

(v)  Determine the level of enhancement to the starting point for any other aggravating factor or factors.

(vi)  Take into account any mitigating factors and make appropriate adjustments to the notional starting point;

(vii)  Apply the totality principle to ensure that the overall sentence is not unfairly unjustly crushing or oppressive.

The court observed that while this sentencing approach is essentially conducted by an arithmetic calculation, it is subject to the discretion of the sentencing court when determining starting points, making adjustments for aggravating or mitigating factors, and assessing the overall sentence.

21.  In the present case, the more potent drug is cocaine.  Therefore, cocaine would be used as the base drug in the assessment of the starting point (i.e. 4 years and 2 months).  The court is then required to consider how much that starting point should be increased in respect of the second drug.

22.  There is no dispute that under the absurdity test, the appropriate notional starting point is 5 years and 9 months.  Under the conversion test, the notional starting point would be 5 years and 4 months.  Under the ratio test, the notional starting point is 4 years and 11 months.

23.  The court will adopt a notional starting point most favourable to the defendant, i.e. 4 years and 11 months.

24.  Trafficking in more than one type of drug is an aggravating factor: HKSAR v Wan Lau Mei; HKSAR v Law Num Chun [2014] 5 HKLRD 500 at paras 19-20; HKSAR v Butt Muhammad Gulzar [2020] HKCA 597 (CACC 205/2019, 17 July 2020).  The rationale is explained in HKSAR v Islam Azharul (supra).  The multiplicity of drugs involved is a factor deserving of an enhanced sentence because a trafficker is able to cater to a far wider market than the trafficker in only one kind of drugs. 6 months’ enhancement was considered appropriate.  In HKSAR v Butt Mohammad Gulzar (supra), the court held that the enhancement must be substantial to have a deterrent value.  If it is less than 6 months, it will lose its deterrent value.  See also HKSAR v Shah Syed Arif [2016] 4 HKLRD 664; HKSAR v Ali Saif [2018] HKCA 358 (CACC 309/2017, 14 June 2018; HKSAR v Joof Saihou [2018] 3 HKLRD 456.

25.  The present case involves 2 different types of drugs but the quantity of drugs is not substantial.  The notional starting point will be enhanced by 4 months, making a starting point of 5 years 3 months (63 months).

26.  The defendant has pleaded guilty at the very first opportunity.  He is entitled to a 1/3 discount.  Apart from his guilty plea, there are no other mitigating factors.  Financial pressure accounts for no weight as a mitigating factor: HKSAR v Montova Munoz Mauricio [2019] 1 HKLRD 439.  The sentencing guidelines are applicable to couriers and storekeepers.

27.  The defendant is sentenced to 42 months’ imprisonment.