HKSAR v. LAM CHI KIN

DCCC 948/2023

[2024] HKDC 693

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 948 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

Overview

1.  The defendant faced 3 charges, namely “Trafficking in dangerous drugs” (“Charge 1”)[1], “Possession of a dangerous drug” (“Charge 2”)[2] and “Possession of an apparatus fit and intended for the inhalation of a dangerous drug” (“Charge 3”)[3].

2.  Upon the defendant’s conviction of Charge 1 on his own plea, the prosecution decided not to proceed with Charge 2 and 3.  I therefore ordered that Charge 2 and 3 be kept on court file and not to be proceeded without the leave of the court.

3.  In the present case, the defendant possessed 4.07 grammes of ketamine, 19.93 grammes of 2-fluorodeschloro-N-ethyl-ketamine (“FDCK”)  and 9.21 grammes of cocaine for the purpose of unlawful trafficking.

Admitted facts

4.  At about 1355 hours on 2 May 2023, the police mounted an anti-narcotics operation in the vicinity of Lot Nos. 189-191 in Demarcation District 95, Lok Ma Chau, New Territories.  During the observation, the defendant came out from a squatter hut in Kwu Tung Village and got in a private car bearing registration mark TZ2392.  Upon seeing that, the police intercepted the defendant for enquiry.

5.  Upon a body search, the police found on the defendant a car key to the said vehicle and a sling bag containing 4 mobile phones, cash of HK$28,300 and 8 keys.

6.  Upon search of the said vehicle, the police, in the presence of the defendant, discovered a considerable quantity of empty transparent re-sealable plastic bags inside the compartment under the driver seat and the following items inside the compartment of the left of the driver seat:

(a)  1 transparent re-sealable plastic bag containing 6 transparent re-sealable plastic bags containing a total of 4.06 grammes of a solid containing 3.50 grammes of ketamine (“Exhibit 3”);

(b)1 transparent re-sealable plastic bag containing 13 transparent re-sealable plastic bags containing a total of 8.91 grammes of a solid containing 7.83 grammes of FDCK (“Exhibit 4”);

(c)  1 transparent re-sealable plastic bag containing 20 transparent re-sealable plastic bags containing a total of 3.77 grammes of a solid containing 3.08 grammes of cocaine (“Exhibit 5”);

(d)1 transparent re-sealable plastic bag containing 40 transparent re-sealable plastic bags containing a total of 7.54 grammes of a solid containing 6.13 grammes of cocaine (“Exhibit 6”);

(e)  1 transparent re-sealable plastic bag containing 20 transparent re-sealable plastic bags containing a total of 13.7 grammes of a solid containing 12.1 grammes of FDCK (“Exhibit 7”); and

(f)  1 transparent re-sealable plastic bag containing 0.66 grammes of a solid containing 0.57 grammes of ketamine (“Exhibit 8”)

7.  The estimated street value of Exhibits 3 to 8 was approximately HK$22,201.

8.  The defendant possessed Exhibits 3 to 8 for the purpose of unlawful trafficking.

Mitigation

9.  The defendant is now 36 years of age, single.  He received education up to Form 3 in Hong Kong.  He has been unemployed since the onset of the pandemic.  He previously worked as a truck driver earning HK$25,000 each month.  He is residing with his parents and younger brother.  His father is a retired factory worker, his mother is a retired civil servant and his brother is a logistics worker.  The defendant maintains a good relationship with them.

10.  The defendant has 3 previous criminal convictions, none of which is dangerous drug-related and they are: “Theft” in 2001, “Gambling” in 2006 and “Dangerous driving” in 2010.

11.  In his mitigation letter, the defendant avers that he is now very remorseful and he, being encouraged by his mother, has determined to reform himself.

Sentencing

12.  In the first place, as rightly pointed out by Mr Yim[4], on behalf of the prosecution, there are no sentencing guidelines for FDCK and, in a number of decided cases, it had been regarded as the same class of dangerous drug as ketamine, to which the same sentencing guidelines apply[5].

13.  In HKSAR v Luk Kuong-chon CACC 268/2021, [2022] HKCA 1432, Macrae VP, in dismissing the appeal against sentence, upheld the reasoning and approach of the sentencing judge at first instance in which she, while accepting the expert opinion that potency and toxicity of FDCK is the same level or slightly higher than ketamine, treated FDCK in the same way as ketamine and enhanced the starting point by two months to reflect the greater potency and the danger of abuse.

14.  In the absence of any expert evidence before me, I am not prepared to consider an enhanced starting point, but I will apply the sentencing guidelines for ketamine to FDCK.  In fact, Mr Jacky Lai, counsel for the defendant, does not take issue of this approach[6].

15.  Trafficking up to 10 grammes of cocaine will attract a starting point of 2 to 5 years’ imprisonment: R v Lau Tak Ming [1990] 2 HKLRD 370 and AG v Pedro Nel Rojas CAAR 15/1993.  On a purely arithmetical approach, 9.21 grammes of cocaine will attract 57.15 months.

16.  According to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the tariff for trafficking 10 to 50 grammes of ketamine is in the range between 4 to 6 years’ imprisonment.  For 24 grammes of ketamine (the total of 4.07 grammes of ketamine and 19.93 grammes of FDCK), the mathematical starting point is 56.4 months.

17.  Both Mr Yim and Mr Lai have worked out the respective mathematical starting points using the 3 means of cross-checking as encapsulated in HKSAR v Chan Yuk Leong CACC 318/2013. Their calculations largely correspond with my computations.

The absurdity test

18.  In terms of potency, cocaine is more serious than ketamine.  Although the quantity of ketamine involved was larger than cocaine, I will use cocaine as the base drug.

19.  In this case, the total quantity of narcotics is 33.21 grammes.  Assuming that all of these were cocaine, the mathematical starting point is 80.88 months.

The conversion test

20.  Trafficking in 24 grammes of ketamine will attract 56.4 months which is equivalent to that of trafficking in approximately 9 grammes of cocaine.

21.  The total quantity of narcotics under the conversion test is 18.21 grammes of cocaine and the starting point, on a purely arithmetical approach, is 67.38 months.

The ratio test

22.  Given the total quantity of narcotics (ie 33.21 grammes), 9.21 grammes of cocaine represents 27.73% of the overall quantity whereas 24 grammes of ketamine is 72.26%.

23.  Assuming all the drugs were cocaine, the mathematical starting point is 80.88 months.  By calculation, 27.73% of 80.88 months is 22.42 months.

24.  Assuming all the drugs were ketamine, the mathematical starting point is 61.92 months.  By calculation, 72.26% of 61.92 months is 44.74 months.

25.  The overall mathematical starting point is 67.16 months, being the sum of 22.42 months and 44.74 months.

Ultimate Sentence

26.  Having applied the 3 means of cross-checking and considered the matter in the round, I will adopt a starting point 66 months’ imprisonment.

27.  In HKSAR v Islam Azharul CACC 98/2019, [2020] HKCA 29, the Court of Appeal, following HKSAR v Wan Lau Mei[7], observed that:

“The second aggravating feature is the multiplicity of drugs. There were four different kinds of drugs involved in the present case, which is a factor deserving of an enhanced sentence “because in such a situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug.” The appellant was trafficking in both hard and soft drugs, and in our view, this would also warrant an enhancement of 6 months’ imprisonment.”

28.  In the present case, the fact that defendant trafficked in more than one type of dangerous drugs squarely gives rise to an aggravating feature which warrants an enhanced sentence.  However, Mr Lai, on behalf of the defendant, submitted that this factor has already been reflected in the conversion and ratio tests. With respect, I cannot agree with this submission.  The tests are for cross-checking purpose in order to ensure the starting point is just, fair and balanced.  It is only after the overall starting point has been arrived at, due consideration will then be given to any aggravating and mitigating factors which warrant adjustment of the sentence to be imposed on the defendant.  Taking into account everything urged upon me on behalf of the defendant and the overall circumstances, I will enhance the sentence by 3 months.

29.  In the result, the ultimate starting point is 69 months’ imprisonment.  The defendant is entitled to a full one-third discount for his timely plea.  I fail to see any mitigating factor which warrants further reduction in the sentence other than his guilty plea.

30.  By reasons of the aforesaid, the defendant is sentenced to 46 months’ imprisonment.