HKSAR v. LIU YEE LUN

HCCC 163/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 163 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty at the earliest opportunity in the Magistrate’s Court for the offence of trafficking in a dangerous drug, consisting of 209 g of a solid containing 57.4 g of ketamine, 5.76 g of a solid containing 5.42 g of cocaine, and 6.44 g of a crystalline solid containing 6.21 g of methamphetamine hydrochloride (commonly known as Ice). The retail value of the drugs seized was estimated at $78,384. In light of the seriousness of the offence, the defendant was committed to this Court for sentence.

2.  The facts giving rise to the offence were that at about 6 pm on 21 September 2016, the defendant was stopped and searched by police officers in the building of his residence at Second Street, Sai Wan. Nothing illegal was found on him.  Upon production of a search warrant, the police officers escorted the defendant to his residence where a search was conducted.  In the bedroom of the defendant a shoebox was located by the police inside which was found the following items, (a) a plastic bag containing 98 plastic bags containing a total of 209 g of a solid containing 57.4 g of ketamine; (b) a nylon bag containing 30 plastic bags containing a total of 5.76 g of a solid containing 5.42 g of cocaine; (c) a plastic bag containing 6.44 g of a crystalline solid containing 6.21 g of Ice; (d) an electronic weighing scale; and (e) a spoon and 1326 empty plastic bags. 

3.  After being arrested and cautioned the defendant said “I did all the dangerous drugs for selling”.  Also found on the defendant at the time of his arrest was a quantity of cash of $3,500 and an iPhone.  In a subsequent video recorded interview, the defendant admitted that he was in possession of the dangerous drugs that were found at his residence; that he knew that the drugs were ketamine, cocaine and Ice; that the cash found on him was the proceeds of selling drugs; and that all the drugs were worth about $30,000 to $40,000, while each packet of cocaine was worth $400 and each of the 98 packets of ketamine was worth about $600 to $700.

4.  The defendant is 18 years old and single.  He was born in mainland China and moved to Hong Kong in 2010.  He had primary education in mainland China and when he moved to Hong Kong he attended secondary school but left after secondary level 2.  He initially worked in a restaurant and then later as a decoration worker.  At the time of the offence he was living with his parents and two elder sisters.  He acknowledged that he is a member of the Sun Yee On Triad society and that since 2015 has had an addiction to cocaine, Ice and ketamine.  From 2013, he has had various convictions for violence and claiming to be a triad.

5.  Mr Kevin Chan, counsel for the defendant, has explained in mitigation that the defendant came to Hong Kong in his early teenage years and had difficulty adjusting which led him to mix with bad company.  He said that this is reflected by his criminal record.  He submitted that whilst his young age is not a mitigating factor, it has had a bearing on his misspent youth.  Letters have been submitted from the defendant and his parents.  His parents state that he is a good hearted person who is relatively immature and unfortunately influenced by others.  They explain that life has been difficult and they blame themselves that they have not provided more guidance to their son. 

6.  The defendant is to be sentenced in relation to trafficking an array of different drugs which each have slightly different sentencing guidelines.  Normally when dealing with a batch of drugs, there are two options open to a sentencing court.  One is to take an individual approach by looking at each drug of the batch, and sentence by adding up the different sentences relevant to each drug.  The other is to take a combined approach which involves identifying the drug which made up the bulk of the batch and sentencing the combined quantity of drugs according to its sentencing tariff, or, where the drugs are of significantly different potency, use the sentencing tariff of the more potent drug if it made up a significant portion of the batch.  The combined approach has been examined in greater detail and looked at by means of various tests when dealing with drugs that are not directly comparable.  One test that is commonly used is the “conversion test” where the court compares the tariffs applicable to different drugs to arrive at a conversion rate, so that a single tariff for one drug could then be applied to the entire quantity seized.  See HKSAR v Yip Wai Yiu and Anor [2004] 3 HKC 367; HKSAR v Wan Lau Mei [2014] 4 HKC 75 at paragraphs 34 to 36; and HKSAR v Chan Yuk Leong,CACC 318/2013, 8 April 2014. 

7.  Ms Noelle Chit, counsel for the prosecution, has very helpfully submitted a calculation applying the conversion test where the end result for a conversion to ketamine for the other two drugs together with the quantity of ketamine would be 6 years and 8 months’ imprisonment.  Where the conversion is made to cocaine according to its sentencing tariff, the sentence would be 7 years and 9 months’ imprisonment and in relation to Ice it would be 7 years and 4 months’ imprisonment.

8.  On the individual approach, the following calculation can be made.  The quantity of ketamine involved is 57.4 g and according to the guidelines laid down in S for J v Hii Siew Cheng [2009] 1 HKLRD 1, a sentence of 6 years’ imprisonment is suggested.  The quantity of cocaine involved is 5.42 g and according to the guidelines laid down in R v Lau Tak Ming [1990] 2 HKLR 370, a sentence of 3 years’ imprisonment is suggested.  The quantity of Ice involved is 6.21 g and according to the guidelines laid down in AG v Ching Kwong Hung [1991] 2 HKLR 125, a sentence of 4 years and 6 months’ imprisonment is suggested.  This would make a total sentence of 13 years and 6 months’ imprisonment and obviously taking into account the totality principle, an adjustment downwards would need to be made.

9.  On the combined approach, most of the drugs were ketamine, and applying the sentencing guidelines for ketamine to the total quantity of narcotic involved, which would be about 70 g, a sentence of 6 years and 3 months’ imprisonment is suggested.  The difficulty I have with the combined approach is that for small quantities of cocaine and Ice, the sentencing tariff is higher than that for ketamine.  There needs to be an adjustment.  The conversion is one way of doing it and I will be guided by it, but as indicated there is a difference in the final sentence depending on which drug the total narcotic has been converted to which is then applied to its sentencing tariff. 

10.  I will impose a starting point, applying the conversion submitted by the prosecution, of 6 years and 8 months’ imprisonment which I will reduce by one third for the defendant’s early guilty plea to 4 years and 6 months’ imprisonment.