HKSAR v. CHAN CHI LAM

HCCC 60/2021

[2021] HKCFI 2092

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 60 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant pleaded guilty to two counts of trafficking in dangerous drugs before a magistrate, admitted to the summary of facts and was committed to the Court of First Instance for sentence. He was duly convicted at the sentencing hearing after confirming his pleas and admission to the summary of facts.

Summary of facts

2.  At around 10:55pm on 2 April 2020, the defendant was intercepted by police officers upon coming out of the lift on the 2/F Man Fuk Building at No 40 Yuet Wah Street, Kwun Tong.

3.  The defendant was brought to 12^th floor of the building where he lived and was searched.  From the left front trousers pocket a resealable transparent plastic bag was found, which contained a 0.17g solid with 0.09g of cocaine, as well as another resealable transparent plastic bag containing 13.7g of a solid with 11.8g of ketamine.

4.  The defendant was arrested and admitted under caution that the said dangerous drugs belonged to him.  Together they form the subject matter of count 1.

5.  A key found on the defendant was used to open the door to his home at Room 1214C and a search warrant for the room was executed.

6.  Upon search, a total of 2.14g of cocaine; 387.04g of ketamine; 831.34g of methamphetamine hydrochloride (commonly known as ice); 19.44g of 3,4-methylenedioxymethamphetamine (commonly known as MDMA or ecstasy); and 4.75g of flurodeschloroketamine (‘f-ketamine’)  were found from inside various bags inside the room.  Together they form the narcotic subject matter of count 2.

7.  Other paraphernalia related to drug trafficking were also found, including empty transparent resealable plastic bags, a box of gloves, two electronic scales and a plastic bag sealing machine.

8.  The defendant was arrested again and admitted under caution that all the dangerous drugs belonged to him.

9.  In the subsequent video recorded interview, the defendant said that he had the only key to the room, which was used for packing dangerous drug.  He did not know who rented the room.  Someone would pass the drugs to him at various places and told him to pack them.  After the defendant packed the drugs, someone else would follow up.  The defendant said he was paid an unfixed amount for his effort.  He had been packing drugs there for about half a month.

10.  The defendant admitted that, at the material time, he was in possession of all the dangerous drugs in counts 1 and 2 for the purpose of unlawful trafficking.

Previous conviction

11.  The defendant was convicted of one charge of robbery in December 2016 when he was 15 years old and was ordered to be detained in reformatory school.

Background and mitigation

12.  The defendant is 19 and was 18 at the time of the offence.  He is single and living with his mother.  His father passed away in 2013 in a car accident when the defendant was about 11.

13.  The defendant was educated up to Form 2 and then he left school to become a mechanic apprentice.  He was unemployed at the time of the offence.

14.  In his handwritten letter, the defendant tells of how he was persuaded by his friends and fueled by greed to start trafficking in dangerous drugs. Once he started, he could no longer stop despite knowing that he should because by then he was addicted and had to keep selling to finance his drug abuse.  He is remorseful and treasures every visit by his family.  The defendant had enrolled in a secondary school course while incarcerated and hopes to be able to rejoin society upon his release.

15.  The defendant’s grandfather, mother, uncles, aunt, and friend wrote in support.  They speak to the defendant’s misfortune of losing his father in the formative years of his youth and how as a result he had been led astray.  They ask for leniency on his behalf.

Sentence

16.  The maximum sentence on conviction upon indictment for the offence of trafficking in a dangerous drug is that of a fine of $5 million and imprisonment for life.

Count 1

17.  There are two types of drugs involved and I will adopt the combined approach in sentencing.

18.  Although cocaine is the more potent drug when compared to ketamine, given that it made up only 0.75% (0.09/11.89 x 100)  of the total amount, I will use the sentence for ketamine as the base sentence and adjust it upwards to take into account the cocaine.

19.  11.8g of ketamine would lead to a guideline sentence of 49 months’ imprisonment[1].

20.  0.09g of cocaine would lead to a guideline sentence of 24 months’ imprisonment[2].

21.  A simple combined sentence would be 73 months’ imprisonment.  The next step is to cross-check this possible sentence by the following three tests.

The absurdity test[3]

22.  The combined weight of the ketamine and cocaine is 11.89g.  Even if we assume that the entire quantity is the more potent drug of cocaine, the guideline starting point would only be 62 months.  It is obvious that a sentence of 73 months would be absurd and adjustments must be made.

The conversion test[4]

23.  The conversion method is to convert all drugs into the most prominent drug, being ketamine, by finding out what amount of ketamine would have attracted the same sentence for the amount of cocaine.

24.  0.09g of cocaine has a guideline starting point of 24 months.  A quantity of ketamine that would lead to a sentence of 24 months is that of 1g.

25.  The total converted amount of ketamine would, therefore, be 12.8g (11.8g + 1g).  This converted amount would lead to a guideline starting point of 50 months, which is one month more than the base starting point of 11.8g of ketamine.

The ratio test[5]

26.  The third means of cross-checking is to apply the ratio test.

27.  The ketamine accounted for a ratio of 0.99 in weight of the total quantity seized (11.8/11.89); and the cocaine for 0.01 (0.09/11.89).

28.  11.89g of ketamine would have attracted a sentence of 49 months. 11.89g of cocaine that of 62 months.

29.  Applying their individual ratio to the sentence assuming they are of a single drug would result in a sentence of 48.51 (0.99x49)  months for the ketamine; and 0.62 (0.01x62)  month for the cocaine.  The total sentence on application of the ratio test would, therefore, be 49.13 months.

30.  Having applied the three cross-check tests, I find that an upward adjustment from the sentence for 11.8g of ketamine by one month is the proper starting point.  That is to say, a starting point of 50 months’ imprisonment for count 1.

Aggravating factor

31.  It is accepted by Mr Kwan that that trafficking in more than one type of dangerous drugs is an aggravating factor, for which I will enhance the defendant’s sentence in count 1 by three months, leading to a sentence of 53 months’ imprisonment.

32.  It is trite law that the personal circumstances of the defendant would not warrant a departure from the sentencing guidelines or a reduction in sentence in serious offences such as trafficking in a dangerous drug, and I will not do so.

33.  The defendant was 18 at the time of the commission of the offence, this age is not regarded as extreme youth in serious offences such as trafficking in a dangerous drug and as such there is to be no discount on the basis of youth.

34.  The defendant is, therefore, sentenced to 35 months’ imprisonment for count 1 after the full one-third discount is granted in recognition of his timely plea of guilty.

Count 2

35.  The drugs involved in count 2 are 831.34g of ice, 384.2g of ketamine, 4.75g of f-ketamine, 2.84g of ketamine, 19.44g of MDMA (ecstasy)  and 2.14g of cocaine.

36.  Since ecstasy, ketamine and f-ketamine share the same sentencing guidelines, their quantity can be grouped together as 411.23g of ketamine.

37.  Of all the seized drugs, ice is the most potent one and will be used as the base for the combined approach to sentencing that I will adopt.

38.  After a similar application of the absurdity, conversion and ratio test referred to above, I find that an appropriate starting point for count 2 is that of 257 months’ imprisonment.

39.  For the same aggravating factor of the defendant trafficking in different types of drugs, I will enhance this sentence by three months, taking it to 260 months, and resulting in the discounted sentence of 173 months’ imprisonment for count 2.

Totality

40.  The overall total amount of drugs of the two counts is 831.34g of ice, which would have attracted a guideline starting point of 253 months; 423.03g (411.23+11.8)  of ketamine, which would have attracted a guideline starting point of 122 months (the equivalent quantity of ice that would yield a similar sentence is 58g); and 2.23g (2.14g + 0.09g)  of cocaine, which would have attracted a guideline sentence of 32 months (the equivalent quantity of ice that would yield a similar sentence is 0.01g).

41.  Applying the conversion test would result in a converted amount of 889.35g of ice, which would lead to a guideline starting point of 257 months, being the same as the starting point in count 2 before enhancement.

42.  Applying the principle to totality, I will order that the sentences in count 1 and 2 be served wholly concurrently.

43.  The final sentence for the two counts after plea is, therefore, 173 months’ imprisonment.