HKSAR v. LEUNG MAN HO

DCCC 1132/2021

[2022] HKDC 1350

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1132 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea and agreement to Summary of Facts for a charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

Facts

2.  In the early hours of 22 August 2021, plainclothes police officers saw the defendant was near to a private car, registration number XF2258 (“V”), when the defendant suddenly stopped and looked around him.  Feeling suspicious, the officers intercepted the defendant and declared their police identity.

3.  Upon search of the defendant’s bag, there were cash of HK$18,003 and RMB30, 2 octopus cards, 2 mobile phones and a car key.  With the car key, the officers unlocked V’s door.  Inside the hidden compartment of the control panel in V’s driver door, 2 resealable bags were found.  One of the resealable bags bore the Chinese word for “Crystal” (晶)  and the number “70/20” and it contained 57 small resealable bags containing 20.7 grammes of a solid containing 17.95 grammes of ketamine.  The other resealable bag bore the number “10” and it contained 8 small resealable bags containing 1.27 grammes of a solid containing 1.08 gramme of cocaine.  The total street value of the drugs involved was HK$16,568.96.

4.  Upon arrest and under caution at the scene, the defendant said he lost money in gambling and owed people money.  As for the “Coke” and “K Jai” found in his car, he was helping someone to sell the drugs in order to earn money to repay the debt.

5.  The defendant’s residence was 1.7 km away from where the officers intercepted him.

6.  In the subsequent video-recorded interview, under caution the defendant said, inter alia, that:

(a)  he was unemployed and a month ago a friend referred him to the work of selling drugs, for which he could receive a daily wage of $2,500 and he had sold the drugs for 10 days;

(b)  he sold $400 per pack of ketamine, $250 per pack of cocaine;

(c)  the cash found on him originated from the daily wages earned from selling drugs, and he intended to repay debts with the money; and

(d)  he had drug consumption habit.

7.  The defendant was the registered owner of V.

Criminal record

8.  The defendant has a clear record.

Mitigation

9.  The defendant is aged 24.  He is single and lives together with his family at the time of arrest.  He was educated up to Form 6 level, subsequent to which he received one year architectural engineering course at IVE.  Prior to the arrest, he worked as a kitchen apprentice earning about $23,000 per month. 

10.  The defendant had drug addiction problem and he had lost money in gambling, so he transgressed the law by selling the drugs.  It was said the defendant is now fully aware of the seriousness of the crime and is deeply remorseful, and he will not offend again.

11.  Defence counsel handed to this court mitigation letters from the defendant and his mother which showed the defendant’s remorse and the lack of parental control whilst he was young when the mother was busy at work. 

12.  Defence counsel submitted that there are two types of drugs involved in this case. He referred this court to the Court of Appeal cases concerning sentencing guidelines for cocaine and ketamine.  He asked this court to adopt the combined approach by using the ketamine as the yardstick, and looking at the overall quantity of the drugs for the sentence.  He asked this court to deal with the defendant leniently.

Discussion

13.  Before sentencing, this court has carefully considered all that was advanced on behalf of the defendant, including the mitigation letters submitted and the legal authorities in the area. 

14.  On conviction upon indictment of this charge, the maximum sentence is a fine of $5 million and imprisonment for life. 

15.  Trafficking in dangerous drugs is a very serious offence and in usual circumstances, it is well established that personal background and circumstances is not considered a valid mitigating factor.

16.  The drugs involved in this case is 17.95 grammes of ketamine and 1.08 grammes of cocaine. 

17.  For trafficking 1.08 grammes of cocaine, following the authority of Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, in adopting the guideline in R v Lau Tak Ming [1990] 2 HKLR 370, the appropriate sentencing starting point is 24 months’ imprisonment. 

18.  For trafficking 17.95 grammes of ketamine, following the authority Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the appropriate sentencing starting point is 52.77 months’ imprisonment.

19.  If all the drugs in this case, ie 19.03 grammes of drugs trafficked is cocaine, the sentencing starting point would be 68.127 months’ imprisonment. If all the drugs trafficked in this case is ketamine, the sentencing starting point would be 53.418 months’ imprisonment. 

20.  Under the combined approach and the ratio test, the sentencing starting point in this charge should be 54 months’ imprisonment.  This court finds it most appropriate to adopt this combined approach in calculating the sentencing starting point.

21.  It is well established that as there are more than one type of drugs involved, the same constitutes an aggravating feature in sentencing, for which the sentencing starting point is enhanced by 3 months, taking the sentencing starting point to 57 months’ imprisonment. 

22.  The defendant has pleaded guilty and is therefore entitled to a full one-third sentencing discount.  For this charge, he should be sentenced to 38 months’ imprisonment.

23.  Committing the offence because of financial difficulty is not a valid mitigating factor. 

24.  Further, this court is willing to accept the defendant’s contention, in the absence of urine test report, that he is a cocaine user and that half of the quantity of cocaine seized is for his own consumption.  For this reason, the court is willing to exercise its discretion and to discount the sentence by 2 months’ imprisonment. 

25.  Accordingly, the defendant is sentenced to 36 months’ imprisonment in this case.