HKSAR v. LIU CHUN LOK

DCCC 854/2024

[2025] HKDC 681

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 854 OF 2024

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REASONS FOR SENTENCE

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INTRODUCTION

1.  The defendant pleaded guilty to Charge 1, a charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance (Cap 134); Charge 2, a charge of driving in excess of speed limit, contrary to section 41(1)(a)  of the Road Traffic Ordinance (Cap 374)  (“RTO”); Charge 3, a charge of driving while disqualified, contrary to section 44(1)(b)  of RTO; Charge 4, a charge of using a motor vehicle without third party insurance, contrary to section 4(1)  and (2)(a)  of the Motor Vehicles Insurance (Third Party Risks)  Ordinance (Cap 272); and Charge 5, a charge of failing to provide a specimen of blood or urine, contrary to sections 39P(1)  and 39S of RTO.  That is a total of 5 charges.

2.  I found the Defendant guilty as charged after he admitted the Summary of Facts.

THE FACTS

3.  Facts admitted by the Defendant disclosed that at about 10:47 am on 20 September 2023, PC28605 (PW1)  used a laser speed detection gun near Chainage 7.9N, Tsing Kwai Highway, Tsing Yi and detected that a private car bearing registration number UD6697 (the “Car”)  driven by the Defendant was travelling at a speed of 125 km/h, which exceeded the 80 km/h speed limit of the material section of the road (Charge 2).  As a result, PC24054 (PW2)  intercepted the Car at Chainage 8.5N.

4.  When being requested, the Defendant failed to provide any valid driving licence.  Upon further enquiry, it was revealed that the Defendant had been disqualified from driving from 1 August 2023 to 31 October 2023 (Charge 3)  and he used the Car on a road when there was not in force in relation to the user thereof by him such a policy of insurance or such a security in respect of third party risks as complied with the requirements of the Motor Vehicles Insurance (Third Party Risks)  Ordinance (Cap 272)  (Charge 4).

5.  At about 11:15 am, PW2 arrested the Defendant for “Driving in excess of speed limit”, “Driving while disqualified” and “Using a vehicle without third party risk insurance”.  Under caution, the Defendant said he was speeding as he was rushing home.

6.  At about 11:30 am, PW2 took the Defendant back to the Car.  When PW2 opened the door of the driver’s seat, he noticed that on the floor there was a transparent re-sealable bag containing white substance.  Suspecting that the Defendant was in possession of dangerous drugs, PW2 searched the area under the driver’s seat and the following items were found:

(a)  19 plastic bags containing a total of 11.1 grammes of a solid containing 9.65 grammes of ketamine;

(b)  1 plastic bag (with the Chinese characters “50 needles” written on it)  containing 36 plastic bags containing a total of 22.5 grammes of a solid containing 19.5 grammes of ketamine;

(c)  1 plastic bag containing 35 plastic bags containing a total of 9.46 grammes of a solid containing 7.74 grammes of cocaine;

(d)  1 plastic bag (with the number “40” written on it)  containing 13 plastic bags containing a total of 3.41 grammes of a solid containing 3.08 grammes of cocaine.

7.  Upon further search, 5 plastic bags containing a total of 1.33 grammes of a solid containing 1.21 grammes of cocaine were found inside a paper box under the front passenger seat.

8.  At about 12:12 pm on the same day, PW2 arrested the Defendant for “Trafficking in dangerous drugs”.  Under caution, the Defendant claimed that the dangerous drugs were his.

9.  Between 12:13 pm and 12:16 pm, PC27466 (PW3)  conducted a search of the Defendant’s shoulder bag and found:

(a)  2 plastic bags containing a total of 0.5 grammes of a solid containing 0.47 grammes of cocaine;

(b)  RMB 400 and HK$6,840.

10.  At about 12:17 pm on the same day, PW2 arrested the Defendant for “Trafficking in dangerous drugs”.  Under caution, the Defendant claimed that the dangerous drugs were his (Charge 1).

11.  Government Chemist (PW4)  subsequently confirmed the above narcotic contents, and there was in total 29.15 grammes of ketamine and 12.50 grammes of cocaine.

12.  The estimated street value of all the drugs was HK$64,126.

13.  The Defendant was later escorted to Tsing Yi Police Station.  At about 2:12 pm on the same day, PW2 demanded the Defendant to provide blood samples for a laboratory test, pursuant to Section 39P of the Road Traffic Ordinance (Cap 374).  The Defendant refused to co-operate and thus at about 2:17 pm, PW2 arrested the Defendant for “Failing to provide a specimen of blood” (Charge 5).

14.  Between 11:50 pm on 20 September 2023 and 12:24 am on 21 September 2023 and from 12:32 am to 12:37 am on the same day, DPC13436 (PW5)  and DSGT52476 (PW6)  conducted two video-recorded interviews with the Defendant.  Under caution, he stated, inter alia, the following:

(a)  He was asked by an unknown male to pick up the drugs at San Po Kong and to pass them to someone in Tuen Mun;

(b)  The Car was lent to the Defendant by the said unknown male at Yau Ma Tei;

(c)  The Defendant knew that he was carrying ketamine and cocaine;

(d)  The Defendant was given to understand that “50 needles” refers to “ketamine”;

(e)  He admitted having put the dangerous drugs underneath the seat of the Car;

(f)  The Defendant trafficked in dangerous drugs as he had borrowed a lot of money due to gambling;

(g)  He was aware that he had been disqualified from driving.

BACKGROUND AND CRIMINAL RECORD

15.  The Defendant is now 32 years old.  He is an only child and received education up to Form 5 level.  He is single and prior to his arrest he was living with his parents in a village house.  I was told that his parents were concerned with his present case.

16.  The Defendant was working as a logistics driver, earning about $15,000 per month at the time of the arrest.

17.  The Defendant has a clear record.  He however has a poor traffic record. Since July 2020, he has 5 convictions and 30 fixed penalties including speeding, failing to comply with traffic signals, failing to carry driving licence when driving, failing to comply with road markings, overloading, and driving goods vehicle without being securely fastened with seat belt.

MITIGATION

18.  Mr Ah-Weng, Counsel for the Defendant, provided me with his written submission for mitigation.  It was submitted that the Defendant has pleaded guilty to all five charges at the first available opportunity and was truly remorseful.  He is a young man who failed to appreciate previously the consequences of his own actions.  He expresses regret for his fault in the present offences which had a great impact on his family. Despite his imminent period of substantial imprisonment, he still has his whole life ahead to turn things around.

19.  A letter of mitigation by the defendant and his mother were produced to this court.  In the letter, the Defendant explained that he resorted to trafficking in dangerous drugs for others in an effort to repay the gambling debts.  He was very remorseful and promised to behave in the future.  Both his retired parents returned to work to repay his debts, and they still visited him regularly regardless of conditions.  He asked for early release so that he could take up the responsibilities to look after his parents and to allow them to retire properly.

20.  The Defendant’s mother spoke to his previous good character and indicated that the present offences were committed entirely out of character.  She asked for leniency from this Court.  

SENTENCING CONSIDERATONS

Charge 1 “Trafficking in dangerous drugs”

21.  Trafficking in dangerous drugs is a serious and reprehensible offence. The law relating to the sentencing of drug trafficking offenders was refined and clarified by the Court of Appeal in a case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.  In that judgment, Macrae VP in giving the judgment of the court set out a six-step approach to the sentencing of offenders convicted of trafficking in a dangerous drug.

22.  With these general principles in mind, I now turn to the six steps laid down in that judgment.

23.  There are two types of drugs involved in the trafficking charge, namely 29.15 grammes of ketamine and 12.50 grammes of cocaine.

Cocaine

24.  The Court of Appeal in HKSAR v Huang Ruifang (黃瑞芳), CACC 106/2022 (unreported, 5 March 2025)  has modified the guidelines for trafficking in heroin and cocaine for all quantities.  For the quantity of 12.50 grammes of cocaine, the relevant guideline band is between 10 grammes and 50 grammes for which the sentence is between 5 and 8 years’ imprisonment.

Ketamine

25.  For ketamine, the sentencing guidelines for trafficking in ketamine are found in Secretary for Justice v Hii Siew Cheng (許守城)[2009] 1 HKLRD 1.  For the quantity of 29.15 grammes of ketamine, the relevant guideline band is between 10 grammes and 50 grammes for which the sentence is between 4 and 6 years’ imprisonment.

26.  It was submitted that the Defendant in his video-recorded interview said under caution, inter alia, that he was only asked by unknown male to pick up the ketamine and cocaine at San Po Kong and to pass to someone in Tuen Mun.  The Defendant further explained in the interview that he trafficked the drugs because he had borrowed a lot of money.  Counsel urged the court to consider that there was no evidence to show that the Defendant was dealing in dangerous drugs to others (ie actual/direct trafficking).  Having regard to the circumstances of this case, I am prepared to accept that the Defendant acted as a courier.

27.  In accordance with the sentencing bands that have just been identified above, for the quantity of drugs involved, the starting points on a straight arithmetic calculation, according to my calculation, are 59.49 months for 29.15 grammes of ketamine and 62.25 months for 12.50 grammes of cocaine.

28.  In sentencing different quantities of different drugs, the Court may adopt “individual approach” or “combined approach”, in order to “sentence fairly, realistically and in a common sense manner”: HKSAR v Yip Wai Yin & Another, CACC 80/2003 (unreported, 7 July 2004).  To achieve a reasonable and realistic sentence, I adopted the combined approach and cross-check it by 3 tests: “absurdity test”, “conversion test” and “ratio test” (see HKSAR v Chan Yuk Leong, CACC 318/2013 (unreported, 8 April 2014)  and HKSAR v Islam S M Majharul [2020] 3 HKLRD 146).

29.  Mr Ah-Weng said he shall adopt the figures worked out by the Prosecution under the three cross-checking tests which more or less coincide with those under my calculations.  In the instant case, the more serious drug in terms of potency is cocaine and should be used as the base drug in the calculation.

The “Absurdity Test”

30.  For the “absurdity test”, the total quantity of dangerous drugs involved was 41.65 grammes (ie 29.15 grammes of ketamine plus 12.5 grammes of cocaine).

31.  As such, from a pure quantitative approach, assuming all the drugs were cocaine, the appropriate starting point for 41.65 grammes of cocaine would be 88.485 months or around 7 years and 4 months of imprisonment.

The “Conversion Test”

32.  The starting point for trafficking in 29.15 grammes of ketamine would be 59.49 months which is roughly equal to the starting point for trafficking in 9.86 grammes of cocaine.

33.  Converting the ketamine involved in the present case to cocaine, the total quantity of drugs would be equivalent to 22.36 grammes of cocaine (ie 12.5 grammes + 9.86 grammes).

34.  For 22.36 grammes of Cocaine, the appropriate starting point would be 71.124 months or around 5 years and 11 months of imprisonment.

The “Ratio Test”

35.  As aforesaid, the total quantity of dangerous drugs involved was 41.65 grammes (ie 29.15 grammes of ketamine plus 12.5 grammes of cocaine).

36.  The result of the “ratio test” are as follows:

Dangerous Drug	Assuming all same (41.65g)	Ratio	Sentence
Ketamine	67 months	29.15/41.65 = 0.7	0.7 x 67 = 47 months
Cocaine	88 months	12.5/41.65 = 0.3	0.3 x 88 = 26 months
TOTAL:		100%	73 months

37.  The starting points under the 3 cross-check tests are:

(a)  the “absurdity test” – 88 months

(b)  the “conversion test” – 71 months

(c)  the “ratio test” – 73 months

38.  Based on the above and having applied the three cross-check tests, I am of the view that a notional starting point of 72 months (6 years)  for trafficking in the cocaine and ketamine concerned would be just and appropriate.

39.  The fourth step requires me to consider whether there are, at present, any aggravating factors which might require me to enhance the starting point. There were 2 kinds of drugs being trafficked in the present case.  The Court of Appeal in the case of HKSAR v Yim Hung Lui Ricky (嚴紅雷), CACC 266/2011 said at paragraph 11 of the judgment that “the presence of more than one type of drug in a drug trafficking offence is an aggravating factor because in such a situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug.”(also see Islam S M Majharul)

40.  Therefore, I enhance the notional starting point by 3 months for there being two kinds of dangerous drugs for a wider market.  The overall starting point is 75 months.

41.  Having fully considered the mitigation put forward by Mr Ah-Weng, I consider that the only mitigating factor which may reduce the Defendant’s sentence is his timely plea.  After deducting the customary one-third discount to plea, the sentence for Charge 1 is reduced to 50 months’ imprisonment.

Charge 2 “Driving in excess of speed limit”, Charge 3 “Driving while disqualified” and Charge 4 “Using a motor vehicle without third party insurance”

42.  As regards Charge 2, the maximum sentence is a fine at level 2.

43.  As regards Charge 3 and 4, the maximum sentences for both charges are at level 3 and imprisonment up to 12 months and disqualification for a period of not less than 12 months.

44.  I was urged to take into account that the Defendant acted alone and did not have any passengers.  Despite the speeding, there was no evidence of other irresponsible driving behaviour.  It was submitted that he was not evading police pursuit, nor engaged in any racing.  Counsel stressed that no accidents occurred and no one was injured.  There was no submission on disqualification.

45.  Turning to the facts of this case, the Defendant was caught speeding by the Police’s speed detection gun driving UD6697 at 125 km/h, which exceeded the 80 km/h speed limit of the material section of the road, 45 km/h over the speed limit.  Upon enquiry, it was revealed that he had been disqualified from driving from 1 August 2023 to 31 October 2023.  I must stress that driving while disqualified and hence, without third party insurance, is a very serious offence as other innocent road users who are injured in any traffic accident may be left without any compensation.  The Defendant’s behaviour is totally irresponsible, and it was a deliberate disregard of the law.  It is only fortunate that no injuries were caused to the other road users. 

46.  I have taken into account all the matters urged upon me in mitigation.  The sentences are as follows:

(1)  for Charge 2, I impose a fine of $2,000;

(2)  for Charge 3, I adopt a starting point of 6 months’ imprisonment. With the timely guilty plea, I sentence him to 4 month’s imprisonment and disqualify him from driving any class of vehicle for a period of 1 year; and

(3)  for Charge 4, I also adopt a starting point of 6 months’ imprisonment. With the timely guilty plea, I sentence him to 4 month’s imprisonment and disqualify him from driving any class of vehicle for a period of 1 year.

Charge 5 “Failing to provide a specimen of blood or urine”

47.  The maximum sentence for this particular charge is up to a fine at level 4 and imprisonment up to 3 years and disqualification for a period of not less than 5 years.

48.  Fung J in HKSAR v Lai King Lun (賴經綸), HCMA 889/2007 emphasized the seriousness of this offence and said at paragraph 17 that the failure to provide a specimen of breath (or blood in the present case)  not only hampers police investigation of the accident and obstructs the sanction of the provisions, it also affects the civil claims.  Therefore, deterrent sentence should be imposed.

49.  After considering all the factors, I adopt a starting point of 6 months' imprisonment.  With the timely guilty plea, I sentence him to 4 months’ imprisonment and disqualify him from driving any class of vehicle for a period of 5 years.

SENTENCES IMPOSED

50.  Accordingly, I sentence the Defendant as follows: Charge 1, 50 months’ imprisonment; Charge 2, fined $2,000; Charge 3, 4 months’ imprisonment, together with a disqualification order from driving all classes of vehicles for a period of 1 year; Charge 4, 4 months’ imprisonment, together with a disqualification order from driving all classes of vehicles for a period of 1 year; and Charge 5, 4 months’ imprisonment, together with a disqualification order from driving all classes of vehicles for a period of 5 years.  For Charge 5, I also make an order under section 72A(1A)  of RTO that the defendant must at his own expense complete a driving improvement course within the last 3 months of the period of disqualification.

51.  The periods of disqualification for Charges 4 and 5 will run concurrently.  According to section 44(3)  of the same Ordinance, the period of disqualification for Charge 3 shall be in addition to any other period of disqualification ordered under any provision of this same Ordinance.  Therefore, the 1-year period for Charge 3 will then be in addition to the 5-year period of disqualification.  That is a total disqualification of 6 years’ disqualification and will run from today.

TOTALITY

52.  Then there is a consideration of totality, for which the court is required to step back and look at the overall sentence in the round.  The prison terms of Charge 3 to 5 would be served concurrently as it is part and parcel of a one continuing event.  Charge 1, the trafficking case, is an offence of a totally different nature to the rest of the offences.  The sentence should, in principle, run consecutively.  However, applying the totality principle, I consider that an overall term of 52 months should sufficiently reflect the criminality involved in this case and it is appropriate and is not out of proportion to the Defendant’s overall criminality.

53.  To achieve that result, I first order that the sentences on Charges 3 to 5 to be served concurrently, of which 2 months is to be served consecutively to the sentence on Charge 1 and the balance concurrently.

54.  The total sentence to be served by the Defendant is 52 months’ (4 years and 4 months)  imprisonment.