HKSAR v. LI KA-MING

DCCC 240/2022

[2023] HKDC 267

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 240 OF 2022

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REASONS FOR SENTENCE

The defendant pleaded guilty to a "trafficking" charge (Charge 1)  and a "simple possession" charge (Charge 2). The dangerous drugs involved are ketamine and cocaine.

Summary of Facts

2.  About 1:30 a.m. on 10 September 2021, PC 17875 (PW1)  saw a private car XK4098 ("the Car")  moving slowly on To Kwa Wan Road, Kowloon.  When PW1 approached the Car, it accelerated.

3.  Later on, PC 26446 (PW2)  spotted the Car outside No.74 Lok Shan Road, Hung Hom and found the defendant sitting in the front passenger seat.  PW2 intercepted the Car for enquiry.

4.  PW1 searched the Car and found the following items in the front passenger seat glove box :-

(i)  a paper bag containing 34 plastic bags which contained a total of 15.2 grammes of a solid containing 13.2 grammes of ketamine (collectively E1); and

(ii)  a paper bag containing 15 plastic bags which contained a total of 2.15 grammes of a solid containing 1.64 grammes of cocaine (collectively E2);

5.  When the defendant tried to answer PW1's questions, some plastic wrappings which contained traces of a damp solid containing cocaine and ketamine (E3)  fell out of the defendant's mouth.

6.  The total estimated street value of E1 and E2 was about $7,440.

7.  The defendant now admits that he possessed E1 and E2 for the purpose of unlawful trafficking and that E3 was in his possession.

Mitigation & Sentence

8.  The defendant is 26 and single.  He has a clear record.  Defence counsel Mr. Li informed me that the defendant came to Hong Kong from the mainland in 2002 and was educated up to F.4 locally.  He used to be a hairstylist assistant earning about $15,000 per month.  A bundle of mitigation documents was placed before me; their contents are duly noted.

9.  In mitigation, Mr. Li submitted that the defendant began to abuse ketamine in 2018.  In his own mitigation letter, the defendant explained that he became unemployed during the pandemic and that he owed debts to finance companies.  He thus foolishly engaged in drug trafficking in order to earn some quick money.  The defendant now understands how serious his mistake was and is remorseful.

10.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime, needless to say engaging in drug trafficking to feed one's drug habit.  Drug abuse has always been a problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers (even fresh offenders)  would most certainly be punished by long-term imprisonment, so that there is a deterrent effect.

11.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see SJ v Hii Siew Cheng [2009] 1 HKLRD 1)  and cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak Ming & others [1990] 2 HKLR 370).  For 10 to 50 grammes of ketamine, the sentence ranges from 4 to 6 years' imprisonment.  For up to 10 grammes of cocaine, it ranges from 2 to 5 years' imprisonment.

12.  In determining the proper starting point for Charge 1, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v Yip Wai Yin & another CACC 80/2003 and HKSAR v Cheng Yat Ming CACC 455/2006.

13.  In the present case, the defendant trafficked in a cocktail of drugs consisting of 13.2 grammes of ketamine and 1.64 grammes of cocaine.  For 13.2 grammes of ketamine, applying a strict arithmetical approach, the appropriate starting point is 50 months' imprisonment.  Similarly, for 1.64 grammes of cocaine, 30 months.  In my view, the "combined approach" would arrive at a realistic and fair sentence. 

14.  Although less potent than cocaine, the ketamine found in this case is in a significantly larger quantity.  I decided that the quantity of ketamine shall form the basis of the starting point[1]. Hence, I adopt a starting point of 50 months' imprisonment and adjust it upward by 10 months for the cocaine, arriving at 60 months.  With the timely guilty plea, the sentence is reduced to 40 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 40 months' imprisonment for Charge 1.

15.  In relation to Charge 2, Mr. Li explained that the defendant tried to conceal the drugs in his mouth upon being questioned by the Police.  For the minute quantity involved, I adopt a starting point of 6 months' imprisonment.  With the timely guilty plea, I sentence the defendant to 4 months' imprisonment for Charge 2.

16.  Bearing in mind the totality principle, I order the sentences for Charges 1 and 2 to run concurrently.  In other words, the total prison term for both charges is 40 months.