HKSAR v. HO CHAK TO

DCCC 183/2024

[2025] HKDC 307

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 183 OF 2024

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REASONS FOR SENTENCE

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1.  Mr Ho pleaded guilty before me to two charges on a Charge Sheet as follows.

2.  Charge 1 is Possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on 9 September 2023, outside No 22 Sheung Heung Road, Hung Hom, Kowloon, in Hong Kong, had in his possession a dangerous drug, namely 0.09 gramme of a liquid containing tetrahydrocannabinol.

3.  Charge 2 is Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on the same day, on a private car bearing registration mark SW4988, outside No 22 Sheung Heung Road aforesaid, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 5.40 grammes of a solid containing 4.46 grammes of ketamine and 5.31 grammes of a solid containing 4.81 grammes of cocaine.

Facts admitted by Mr Ho

4.  On 9 September 2023, at about 8:45 pm, a private car bearing registration mark SW4988 was being parked outside No 22 Sheung Heung Road, Hung Hom, illegally.

5.  A patrolling police constable PC 18645 (PW1)  saw this and approached the car and found Mr Ho in the driver’s seat acting nervously.  PW1 asked his fellow constable PC22765 (PW2)  for assistance.

6.  PW2 asked Mr Ho to alight.  PW1 then brought Mr Ho aside for a search. Upon search, a metallic container (a vape pod)  containing 0.09 gramme of a liquid containing tetrahydro-cannabinol was found in the left front pocket of Mr Ho’s pants.

7.  PW1 arrested Mr Ho.  Under caution, Mr Ho admitted that the substance contained in the vape pod was cannabis oil for his own consumption.

8.  In the presence of Mr Ho, PW1 searched the car and found the following items:

(a)  One resealable plastic bag containing 9 smaller resealable plastic bags containing 5.40 grammes of a solid containing 4.46 grammes of ketamine; and

(b)  One resealable plastic bag containing 36 smaller resealable plastic bags containing 5.31 grammes of a solid containing 4.81 grammes of cocaine.

9.  PW1 arrested Mr Ho again.  Under caution, Mr Ho admitted that he had just collected the ketamine and cocaine from Sheung Shui and he was getting ready to distribute them in Wong Tai Sin.

10.  A further search of the car unveiled cash of $35,730 and RMB288Yuan, and 3 mobile phones.

11.  The estimated street value of the ketamine was about $2,176; that of the cocaine was about $6,220.

Criminal record

12.  Mr Ho has 2 previous convictions recorded on the same occasion relating to possession only.

Antecedents

13.  Mr Ho is aged 31 (30 at the time of the offences), educated to Bachelor’s degree level in UK.  He was a salesperson.  His mother is a retired person.

Mitigation

14.  Mr Robert Lam of counsel mitigated on behalf of Mr Ho.  The following is a summary of the mitigation submissions.

15.  Mr Ho is the only child of a single parent family.  He went to UK for tertiary education and obtained a degree in Business Management in 2017.

16.  In 2019, he started working as a sales manager for a company secretarial company earning about $35,000 per month.  However, COVID resulted in loss of his job.  Afterwards, he had two part-time jobs, (1)  as a second-hand car salesperson and (2)  as a staff member in a pub.  He could not make ends meet so he committed the present offence after getting to know some bad peers.

17.  Mr Ho’s mother retired in 2020 but has re-started working as a part-time security officer earning about $10,000 per month.

18.  The main mitigating factor is the plea of guilty.  Mr Ho frankly admitted his guilt to the police.  He has a good family, academic and employment backgrounds.  He has learnt a lesson.  He asked for leniency so he can turn over a new leaf.

19.  Mr Lam submitted on behalf of Mr Ho a total of 4 mitigation letters written in Chinese (with English translation)  by respectively Mr Ho himself, his mother, a social worker and lastly a parent of a schoolmate.  The writers all asked for a lenient sentence and a chance for reform.

20.  Mr Ho’s mother and a different schoolmate are in court to give him support.

21.  The present case (Charge 2)  involves two types of drugs (4.46 grammes of ketamine and 4.81 grammes of cocaine).

22.  For trafficking in ketamine, the tariffs are in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  For over 1 gramme to 10 grammes, it is 2 to 4 years’ imprisonment.

23.  For trafficking in cocaine, the tariffs are in R v Lau Tak Ming and Others [1990] 2 HKLR 370 by virtue of Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.  For under 10 grammes, it is 2 to 5 years’ imprisonment.

24.  HKSAR v Yip Wai Yin and Another [2004] 3 HKC 367 lays out the methodology for dealing with a cocktail of drugs in terms of sentencing.  Where the individual approach was adopted, the total sentence for Charge 2 might be 6 years and 2 months’ imprisonment.  However, the combined approach will often be the correct one to enable the sentencing court to sentence fairly, realistically and in a commonsense manner.

25.  HKSAR v Chan Yuk Leong, CACC 318/2013, sets out the three cross-checking tests to see if the sentence thus arrived at by the combined approach is reasonable or not.

26.  Mr Lam worked out the results of the three tests as follows:-

(a)  Absurdity test - Cocaine: 4 years 9 months; (for ref only, ketamine: 3 years 10 months);

(b)  Conversion test - to cocaine: 4 years 2 months for 7.37 grammes; to ketamine: 4 years 1 month for 11.95 grammes; and

(c)  Ratio test – 51.89% of cocaine in the total weight rendering 2.48 years + 48.11% of ketamine in the total weight rendering 1.85 years = about 4 years 4 months.

27.  Mr Lam asked the court to refer in particular to the result of the Ratio test.

28.  In relation to Charge 1, there is no tariff on the sentence for possession of cannabis.  Mr Lam asked for a financial penalty.

29.  Upon enquiry by the court, Mr Lam submitted that the role of Mr Ho on the offence night was a deliverer.

30.  After the court has indicated that it will not without evidence accept the claim that Mr Ho was a mere deliverer, Mr Lam initially relayed to the court that Mr Ho would give evidence.  But after asking for and taking 30 minutes for taking full instructions, Mr Lam retracted from his previous position and indicated that Mr Ho would not give evidence after all.

Sentence

31.  Trafficking in a dangerous drug is always a serious offence and it is made more serious when more than one type of drug are involved.

32.  The various figures admirably worked out by Mr Lam under the three cross-checking tests more or less coincide with my own.  The differences are insignificant.  I shall adopt his figures.

33.  The individual approach of sentencing by adding the two starting points for the two drugs respectively is obviously too harsh.  I will adopt the combined approach of sentencing.

34.  I have had regard to the authorities of HKSAR v Islam SM Majharul [2020] 3 HKLRD 146 and HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 when sentencing Mr Ho on Charge 2.

35.  The fact that Mr Ho trafficked in two different types of serious drugs is an aggravating factor: Islam SM Majharul (supra) at 157, para 27(4).

36.  For Charge 2, I shall adopt in the case of Mr Ho an initial starting point of 4 years 2 months’ imprisonment.  I do not accept Mr Ho was a mere deliverer because that could not explain the presence of the large amount of cash of $35,730 in the car.  The evidence amply shows that Mr Ho was an actual trafficker of dangerous drugs that night.  This is another aggravating factor.

37.  For the dual aggravating factors identified above, I shall add 4 months to the initial starting point to arrive at the final starting point of 4 years 6 months’ imprisonment.

38.  For Charge 1, given the minimal amount of the drug, I shall adopt a starting point of 15 days’ imprisonment.

39.  Mr Ho pleaded guilty to the offences in good time.  He shall be entitled to the customary 1/3 sentencing discount on each charge.  There are no other mitigating factors of weight to justify another sentence reduction.

40.  The two offences occurred at the same time and at practically the same place.  If for no other reason, the principle of totality would ensure that the sentences be made to run concurrently.

41.  I step back to look at the overall sentence to see if it is a fair, just and balanced one in all the circumstances of the offences and the offender. These circumstances include the use of a car to facilitate the actual trafficking of a total of 45 plastic bags of two types of drugs.  I feel able to conclude that the overall sentence is not excessive and is a fair sentence on Mr Ho.

(Mr Ho, please stand)

42.  For Charge 1, the sentence is 10 days’ imprisonment.

43.  For Charge 2, the sentence is 36 months’ imprisonment.

44.  I order the sentences to run concurrently with one another.