HKSAR v. CHOI KA LAI

DCCC 391/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 391 OF 2015

----------------------

----------------------

---------------------------------------

REASONS FOR SENTENCE

---------------------------------------

Introduction

1.  The defendant pleads guilty to one charge of trafficking in 34.1 grammes of solids containing 6.48 grammes of cocaine and 2.02 grammes of a crystalline solid containing 1.96 grammes of methamphetamine hydrochloride, contrary to s 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 

2.  Shortly stated, at the material time the private vehicle driven by the defendant was stopped by the Police during a routine snap check.  From the glove compartment of the private vehicle, the police found a white plastic bag which contained an electric scale, 50 empty re-sealable plastic bags and another 4 re-sealable plastic bags containing suspected dangerous drugs which, upon later examination, were confirmed to be the subject matters of the charge. 

Antecedent and records

3.  The defendant is aged 21 and turning 22 in the coming November.  His parents divorced in 2001 and since then the defendant has been living with his father and younger brother.  He had studied at Youth College, a member of the VTC, for two years but was unable to complete the final (third) year because of his bladder stones problem and family financial difficulties. Before his arrest, he had been working as a decoration worker.  He is not a drug addict.

4.  He has a record of common assault and theft back in December 2008 for which he was put on probation for 12 months.  In view of the age and relatively minor nature of the two previous offences, however, for sentencing purpose I will treat the defendant as if he is of a clear record. 

Mitigation

5.  Ms Lee for the defence has put before me a bundle impressive letters written by the defendant’s parents, younger brother, grandparents, employer and girl friend as well as a letter written by a social worker who had the care of the defendant for the period between December 2010 and March 2013.  There are also medical certificates confirming the defendant’s bladder stones problem and commendations issued by Youth College.

6.  In her moving speech in mitigation Ms Lee stressed that the defendant is truly remorseful for what he had done and is sorry that he has disappointed all those who love him.  By way of background, Ms Lee informed the Court that the divorce of the defendant’s parents in 2001 had dealt a severe blow to the father which led to his suicidal attempt, as a result of which the defendant had to stay home to look after him for a prolonged period.  That naturally adversely affected the schooling of the defendant. After discussing the matter with his form teacher, the defendant eventually gave up formal schooling and on the recommendation of the teacher he was admitted to Youth College for vocational training. 

7.  It appears from the commendations that the defendant received that he had done reasonably well at Youth College in the first two years.  Unfortunately, he was unable to complete the course in the third year because of his bladder stones problem for which he received an operation. After recovery, in view of the financial difficulties of the family and the fact that the new school term had already begun, the defendant did not seek to repeat the third year immediately.  Instead, he decided to stop receiving public assistance and to join the labour market in order to ease the family burden.  Owing to his limited education, however, he was only able to land on jobs with a low income.

8.  Despite the aforesaid background, the defendant had not given up on himself.  The mitigating letters show that the defendant was a filial and dutiful son who had gained the affection of his family members and girl friend as well as the trust of his employer.  One telling example is that for a period of two years, the defendant consistently spent time twice a week to accompany his grandfather to an acupuncture clinic to receive treatment for the grandfather’s diabetes, even though that caused a significant reduction in the defendant’s already low income which was calculated on a daily basis. The defendant made the sacrifice without any grievance.  Besides, the defendant is still maintaining regular contacts and a good relationship with his mother in spite of all the hardships he has suffered after she had moved away from the family.  The defendant’s employer has also expressed a willingness to reemploy the defendant after his release from prison. 

9.  As to the present offence, the defendant frankly admits through Ms Lee that what he had told the Police under caution as to the use of the drugs for self-consumption is false.  It was Ah Man, the one who recruited him, who told him to tell the police the lies in case he was caught.  Ah Man had promised him a reward of $1,000 after the delivery, a sum which he had not received.  The defendant felt that he had been used by Ah Man who was the culprit behind the scene.  Regrettably, the defendant was unable to provide any useful information about this person who contacted the defendant using different pre-paid SIM cards. 

Sentencing consideration

10.  The Court of Appeal has laid down tariffs for trafficking in cocaine and methamphetamine hydrochloride (“ice”) respectively. Trafficking in up to 10 grammes of cocaine carries a sentence of 2 to 5 years’ imprisonment: see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and R v Lau Tak Ming & Others [1990] 2 HKLR 370.  Trafficking in up to 10 grammes of ice carries a sentence of 3 to 7 years: see HKSAR Tam Yi Chun [2014] 3 HKLRD 691. 

11.  Although a mathematical approach to sentencing is not to be encouraged, it has been said that the amount of drugs involved was normally the single most important element when considering the appropriate sentence and was very often decisive: see HKSAR v Chong Heung Sang [2010] 3 HKC 88.   Moreover, the fact that the accused was only a courier or that he was of a relatively young age carries not much weight for the purpose of sentencing: see Lau Tak Ming, ante.

12.  In view of the respective tariffs for trafficking in cocaine and ice, trafficking in 6.48 grammes of the former attracts a sentence of about 45 months’ imprisonment and the latter of about 42 months’ imprisonment.  However, the overall starting point is not to be achieved by just adding up the 45 months and the 42 months; otherwise, the overall starting point (87 months) will be manifestly excessive. 

13.  The Court of Appeal in HKSAR v Chan Yuk Leong, CACC 318/2013, by reference to previous decided cases, has provided three means of cross-checking the appropriateness of the overall starting point in case of a trafficking involving different types of dangerous drugs:-

(i) The first means is called the “absurdity test”. In the present case, assuming the whole quantity of drugs seized (8.44 grammes) contained only the most serious drug, ie, ice, the starting point would have been about 75 months’ imprisonment.

(ii) The second means is called the “conversion test”. In the present case, I note that the sentence for trafficking in 1.96 grammes of ice would be similar to the sentence for trafficking in a little bit over 5 grammes of cocaine. If one were to add the converted quantities (a bit over 5 grammes) to the 6.48 grammes of cocaine seized, one would arrive at a total of about 11.7 grammes of cocaine. Applying the Lau Tak Ming tariffs, one would arrive at a sentence of about 60 months’ imprisonment.

(iii) The third means is called the “ratio test”. Applying this test, on the basis that the ice seized accounted for about 23% of the total quantity seized (8.44 grammes) and that the cocaine accounted for about 77%, the overall starting point would be about 58 months.

The above calculations apart, the court also has to take into account the ability of the trafficker to cater to a wider market arising from the fact that more than one type of dangerous drugs were involved. I note that there is no evidence before the court that the dangerous drugs would be mixed into a cocktail to enhance their potency.

14.  Having considered all the circumstances, I take 60 months’ imprisonment as the overall starting point for sentence.  The defendant is entitled to the customary one-third discount for the plea.  I have not ignored that the discount for general good character would usually be subsumed under the one-third discount for plea.  However, in the present case, perhaps a bit over-generously, I am persuaded that the mitigation letters before me show that the defendant is of a positive good character which justifies an additional discount over and above the one-third for plea.  On this basis, I grant an additional 2 months discount. 

15.  Therefore, the defendant is sentenced to 38 months’ imprisonment.