HKSAR v. YEUNG PUI KA AND ANOTHER

DCCC 214/2024

[2025] HKDC 57

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 214 OF 2024

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REASONS FOR SENTENCE

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1.  The defendants respectively pleaded guilty to the 1^st and 2^nd charges on this indictment which means the 1^st defendant has pleaded guilty to the possession of a dangerous drug, the drug in question being ketamine and the quantity being 0.28 grammes of that drug; and the 2^nd defendant has pleaded guilty to a charge of trafficking in a dangerous drug and in this case it was a combination of drugs or a cocktail of drugs which consist of 5.45 grammes of ketamine and 3.76 grammes of cocaine.

2.  The facts are basically stated.  The 1^st defendant was arrested after having bought the drugs in the 1^st charge from the 2^nd defendant in his car and the 2^nd defendant was later found in his car together with the drugs set out in the 2^nd charge which he admits to trafficking in.

3.  The defendants’ circumstances are set out in their mitigation and their antecedents.  The 1^st defendant unfortunately has a previous involvement with drugs.  She has convictions dating back to 2004 for theft and common assault.  In 2009 and again in 2014 she was convicted of possession of a dangerous drug and most recently in 2014 sentenced to 4 months’ imprisonment suspended for 24 months and also fined a sum of money.

4.  The 2^nd defendant’s antecedents show that he has been convicted of offences in the past related to such items as in 2011, possessing articles with the intention to destroy and damage property; in 2012 and 2018, acting as a member of a triad society and again in 2021 but no previous convictions for possession or trafficking in a dangerous drug.

5.  The 1^st defendant presents fairly extensive mitigation.  She is aged 34, educated to Form 5 level.  She is unmarried but has an 11 year old daughter with a former boyfriend and has some care of that child.  It is admitted that she is not a first-time offender and has previous records for the same offence but it is noted that some 10 years have elapsed since that conviction.

6.  As far as the approach to the 1^st defendant’s case is concerned, I determined as she was relatively young and had a previous record of taking drugs that I would investigate her circumstances via the Probation Officer and were that not to be a positive result then to see if she was suitable for detention at Drug Addiction Centre.

7.  The most recent Probation Report on the 1^st defendant describes her as “wilful and rebellious”, “mixing with dubious peers and pleasure-seeking activities and abusing dangerous drugs since the age of 16”, held to have a “loose living in past years, failure to have stable employment or relationship with the opposite sex”.  In the course of enquiries, she is described as “Displaying uncooperative and a difficult attitude when arranging a home visit and interviewing with her daughter.  She was evasive in revealing her actual home (?)  and other conditions to the investigating Probation Officer.  The accused’s genuine motivation to persist to tackle her problems remain doubtful”.  The conclusion was as follows: “In view of the foregoing together with her limited insight into her problems and little determination to change her way of life, probation supervision is not recommended as an effective measure for the accused’s rehabilitation and hence not recommended in her case”.

8.  Given that the length of time between her previous conviction and the current conviction and the fact that she has during that time sought treatment for her drug problems, the Probation officer’s report would have been a viable option for her if she had been able to forge a good relationship with the Probation officer and had a recommendation for probation.  That not being the case, I did obtain in respect of her a Drug Addiction Treatment Centre Report. There is one encouraging aspect of the Drug Addiction Treatment Centre Report is that the defendant is no longer a drug dependant, that is the determination of that report as of the sentencing today which would mean that consideration of that form of sentencing for the 1^st defendant would not be appropriate.

9.  I will turn to the sentence of the 1^st defendant first.  As far as the approach to sentence is concerned, she has simply been convicted of possession of a dangerous drug in a small quantity.  Although there is no active guideline for this, there are directions for the court in HKSAR v Mok Cho Tik [2001] HKC 261, where it is said that the starting point for mere possession of a quantity of dangerous drugs which a bona fide (user?)  would normally have in his possession of her possession should be in the range of 12 to 18 months.  “This sentence assumes cases in which a sentence of imprisonment rather than a rehabilitative measures is deemed necessary”, which appears to be the case today, “and it does not seek to exclude magistrates from imposing lesser terms for small quantities where the circumstances so warrant.  Obviously the quantity will be the main government factor which will determine where the starting point will lie”.  So the court is allowed some flexibility in approaching the case where a sentence of imprisonment appears to be the only viable alternative left to the court.

10.  I note in her case that she has already been sentenced to a suspended sentence of imprisonment and that has in the long term failed to deter her from further drug taking activity.

11.  In mitigation, has put forward her personal situation, the fact that she is a young mother, a single mother, she is not married, and secondly, that she provided some immediate assistance to the police in directing them to the 2^nd defendant and no doubt would have assisted their enquiry to some extent.

12.  It would appear that the range of options available to me for sentencing the 1^st defendant has been limited.  She is not suitable for Probation and does not qualify for the Drug Addiction Treatment Centre.  Given her previous drug history, I do consider that a sentence of imprisonment is for her the only approach that I can realistically take at this stage.  What I shall do is take a relatively small sentence of imprisonment.  I will take a starting point of 6 months’ imprisonment.  I reduce that to 4½ months’ imprisonment having regard to the assistance she gave to the police.  Following on from that, she is entitled to a further one-third discount which leads to a final sentence of 3 months’ imprisonment for her.

13.  I turn now to the 2^nd defendant.  He of course has pleaded guilty to the more serious offence of trafficking in a dangerous drug.  The quantities that I am concerned with are 5.45 grammes of ketamine and 4.61 grammes of cocaine, cocaine being on the face of it the more serious drug.

14.  The full Summary of Facts has been admitted to by the 2^nd defendant.  He will be entitled to a full one-third discount from his sentence.  The tariffs which I am looking at in respect of ketamine and cocaine can be seen set out in the case of, firstly, Secretary for Justice v Hii Siew Cheng at [2009] 1 HKLRD 1, page one for ketamine, and HKSAR v Abdallah [2009] 2 HKLRD 437 for cocaine.  Having regard to those tariffs, the tariff that I am concerned with, the amount of ketamine is between 1 to 10 grammes where an operative sentence of between 2 to 4 years’ imprisonment would be appropriate and for cocaine for the sentence up to 10 grammes where an operative sentence of between 2 to 5 years would be appropriate. 

15.  Mr Cheung has done the helpful work of calculating the individual sentencing on a purely mathematical basis which shows that on an individual basis of sentence the sentence for the ketamine at 5.45 grammes would be a starting point of 2.99 years’ imprisonment and for cocaine at 3.76 grammes would be a starting point of 3.13 years’ imprisonment.

16.  I am dealing here with a combination of what is described as a cocktail of drugs.  A specific approach is needed to that and the approach described as the “combined approach” can be found in HKSAR v Cheung Wai Man [2019] 1 HKLRD 817 and also the approach contained in HKSAR v Chan Yuk Leong at CACC 318/2013 which sets out the various tests against which the approach under the combined test can be assessed.  I would simply describe the combined approach as follows:  It is to take the sentence for the more serious of the drugs, determine what that should be and then add the quantity to have regard to the fact of the lesser serious drug in the charge.  Once that figure has been determined, then the courts should test that figure against the tests set out, namely the “individual test”, the “absurdity test”, the “conversion test” and the “ratio test”.  Again, those figures have been helpfully compiled for me by Mr Cheung which shows that the figure under the absurdity test would be one of 4.76 years, under the conversion test, one of 4.13 years and under the ratio test, one of 4.2 years.

17.  I also have regard to the fact that the assessment of sentencing in cases of this nature is not purely a mathematical exercise and that can be seen from the case of HKSAR v Chan Yuk Leong where it said “Having set out the above tests, we remind ourselves the court has often warned against slavishly applying a strictly mathematical approach.  The purpose is to avoid any perceptions of injustice arising from disparity in sentence”.

18.  Also the more recent case of HKSAR v Herry Yuseph has emphasised the court must not engage in a strictly mathematical approach in determining the starting point for sentence in a case where the court is dealing with a combination or cocktail of drugs.  One must also look at the broader circumstances such as the defendant’s role in the case and the seriousness or otherwise of the offence of which he has been convicted.

19.  In this case, it would appear the defendant was simply a supplier of the drugs to the individual consumer from his car.  Little more is known about his involvement for that.

20.  Having regard to the approach to sentence for this 2^nd defendant, I bear in mind that all the calculations of sentence, save for the one would have under the individual approach, lead to a sentence of around, in an approximate figure, around 4 years’ imprisonment or slightly more than that.  I bear in mind this is this defendant’s first conviction for a drug offence in respect of the charge which he faces.  So I shall take a starting point for sentence at 4 years’ imprisonment, that is 48 months’ imprisonment.  He is entitled again to a full one-third discount for his plea of guilty which reduces the sentence to one of 32 months’ imprisonment.  That will be the sentence of the court.