HKSAR v. HO KAI PONG, MICHAEL

DCCC 487/2024

[2025] HKDC 337

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 487 OF 2024

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REASONS FOR SENTENCE

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1.  Mr Ho pleaded guilty before me to two charges on a Charge Sheet as follows.

2.  Charge 1 is Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on 17 November 2023, at 1^st Floor, No 1038 Canton Road, Mong Kok, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 1.28 grammes of a mixture containing 0.96 gramme of heroin hydrochloride, 0.57 gramme of a crystalline solid containing 0.57 gramme of methamphetamine hydrochloride, 0.12 gramme of a solid containing 0.10 gramme of cocaine, and 10 tablets containing 0.13 gramme of midazolam.

3.  Charge 2 is Keeping a divan, contrary to section 35(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on the same date, at the same place, in Hong Kong, kept a divan, where dangerous drugs, namely heroin hydrochloride, methamphetamine hydrochloride, cocaine and midazolam, were sold in the divan and were to be smoked, inhaled, ingested or injected therein.

Facts admitted by Mr Ho

4.  On 17 November 2023, at about 11:50 am, on strength of a search warrant, police entered the premises situated at 1^/F of No 1038 Canton Road, Mong Kok.  Mr Ho was seated at a black wooden table in the living room.  In addition, there were 10 other persons seated at different tables.

5.  Upon search, police found the following items on the black wooden table:

(a)  A blue plastic box containing:

(i)  Cash of $340;

(ii)  7 packets containing a total of 1.28 grammes of a mixture containing 0.96 gramme of heroin hydrochloride (E1);

(iii)  2 plastic bags containing a total of 0.57 gramme of a crystalline solid containing 0.57 gramme of methamphetamine hydrochloride (a salt of methamphetamine)  (E2);

(iv)  3 plastic bags containing a total of 0.12 gramme of a solid containing 0.10 gramme of cocaine (E3); and

(v)  1 foilpack containing 10 tablets containing a total of 0.13 gramme of midazolam (E4);

(b)  Two plastic bottles with glass tubes and straws;

(c)  Two plastic straws;

(d)  Aluminium foil;

(e)  Two lighters;

(f)  A pair of scissors;

(g)  A re-sealable plastic bag;

(h)  A digital scale;

(i)  A calculator; and

(j)  Three pens.

6.  A price list was stuck on the wall behind the black wooden table.

7.  Mr Ho was arrested.  Under caution, he admitted to be the person responsible for the premises and that E1-4 were dangerous drugs to be sold to customers.

8.  In the subsequent cautioned VRI, Mr Ho admitted that:

(a)  The cash of $340 found was money made from selling dangerous drugs;

(b)  The plastic bottles, straws, lighters and aluminium foil were used for consuming dangerous drugs;

(c)  The price list contained the price of various dangerous drugs;

(d)  The digital scale was for weighing dangerous drugs;

(e)  The calculator was used when selling dangerous drugs; and

(f)  The pens were for writing the drug price list.

Criminal record

9.  Mr Ho has 26 previous convictions 3 of which were for trafficking and 8 of which were for possession of dangerous drugs.

Antecedents

10.  Mr Ho is aged 46 (45 at the time of the offences), educated to F2 level.  Mr Ho is separated from his wife.

Mitigation

11.  Mr Leung Ka Lok of solicitor assigned by the Director of Legal Aid mitigated on behalf of Mr Ho.  The following is a summary of the mitigation submissions.

12.  Mr Ho used to be a casual worker earning $8,000 a month.

13.  For the drug methamphetamine hydrochloride ie ICE, the appropriate starting point for trafficking in up to 10 grammes is 3 to 7 years’ imprisonment: Attorney General v Ching Kwok Hung [1991] 2 HKLR 125 and HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.

14.  For the drug heroin, the appropriate starting point for trafficking in up to 10 grammes is 2 to 5 years’ imprisonment.

15.  In HKSAR v Islam SM Majharul [2020] 3 HKLRD 146, the Court of Appeal set out guidelines on the methodology to be adopted in calculating the starting point for trafficking in multiple drugs.  Pursuant to those guidelines, the 7 step methodology for the calculation of the appropriate starting point under the “combined approach” is as follows:

(a)  Determining the base drug to be used to calculate the starting point of the two drugs. This requires determining which of the two drugs is the “more or most serious drug” in terms of potency;

(b)  Calculate the starting point according to the quantity of the base drug in accordance with the relevant sentencing guidelines;

(c)  Determine how much this starting point should be increased to allow for the quantity of the other drug. This is ultimately an exercise of sentencing discretion and should be done by:

(i)  Considering the quantity of the other drug and the relevant sentence according to that drug’s sentencing guidelines and by reference to the starting point adopted for the base drug;

(ii)  Conducting an overall comparison of the sentencing guidelines of the two drugs and their related ranges of sentence;

(iii)  Examining the results of the absurdity test, the conversion test and the ratio test;

(iv)  Taking all these matters into account to calculate a reasonable and realistic increase to the starting point.

(d)  Determine the level of enhancement to the starting point to take into consideration that the trafficking involved two or more serious drugs as an aggravating factor;

(e)  Determine the level of enhancement to the starting point for any other aggravating factors;

(f)  Take into account any mitigating factors and make appropriate adjustments to the “notional starting point”; and

(g)  Apply the totality principle to ensure that the overall sentence is not unfairly or unjustly crushing or oppressive.

16.  Using this methodology, the base drug in this case (ie the most potent drug)  is ICE.  The appropriate starting point for trafficking in 0.57 gramme is 39 months’ imprisonment.

17.  In respect of Charge 2, Mr Leung referred to the following cases:

(a)  HKSAR v Chan Man Lung, DCCC 235/2021;

(b)  HKSAR v Lai Kin Wing, DCCC 812/2020; and

(c)  HKSAR v Chan Hoi Kit, DCCC 447/2019.

18.  Mr Leung submitted that the starting point adopted in these 3 cases were from 15 to 24 months’ imprisonment.  The period of 3 to 6 months’ imprisonment was ordered to run consecutively to the sentence on the trafficking charge.  Mr Leung submitted that after taking into account the totality principle, the court may wish to follow a similar approach.

19.  After the court directed Mr Leung by correspondence to submit further on how the methodology under Majharul would work through in the present case, Mr Leung filed supplemental written submissions.  Mr Leung first suggested the court to ignore the small amounts of cocaine and midazolam under Charge 1.  He then nominated the base drug (the most potent drug)  to be ICE. He worked out arithmetically the starting point for trafficking in 0.57 gramme of ICE to be 38.736 months’ imprisonment.  Next, he worked out the figures for the remaining drugs under the three cross-checking tests and obtained the following results:

(a)  Absurdity test for ICE only: 44 months for 1.76 grammes[1];

(b)  Conversion test: all to Heroin only (Mr Leung admitted he was not sure of the result so it will not be reproduced here); and

(c)  Ratio test: 0.57/1.53[2] x 43 (ICE)  + 0.96/1.53 x 29.5 (Heroin)  = 34.5 months.

20.  Mr Leung noted that the result of the Ratio test gave a lower figure than the starting point for ICE alone ie 38.736 months.

21.  Upon enquiry by the court, Mr Leung accepted that, given Cocaine and Heroin share the same sentencing tariffs, the more logical way would be to combine the weights of the two types of drug when calculating the arithmetical starting point for these two drugs.

Sentence

22.  For Charge 1, I shall adopt the combined approach of sentencing instead of the individual approach.

23.  I shall disregard the small amount of midazolam when considering the sentence for Charge 1.

24.  I shall combine Heroin hydrochloride and Cocaine together when doing the calculations for the starting point and under three cross-checking tests for the reason that these two types of drug share the same sentencing tariffs.

25.  Mr Ho has a bad criminal record for dangerous drug offences.  I will treat him as a repeated offender of this type of offence.  This is the first aggravating factor.

26.  There was the presence of 3 types of serious drug.  This is the second aggravating factor.

27.  Mr Ho played the role of an actual trafficker on the day in question. This is the third aggravating factor.

28.  In sentencing Mr Ho for Charge 1, I have had regard to the authorities of HKSAR v Islam SM Majharul (supra) and HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

29.  The weight of ICE in this case ie 0.57 gramme calls for an arithmetical starting point of 38.736 months’ imprisonment.

30.  The combined weight of Heroin hydrochloride and Cocaine in this case is 1.06 grammes calling for an arithmetical starting point of 27.816 months’ imprisonment.

31.  I then worked out the results of the three cross-checking tests:

(a)  Absurdity test: ICE 43.824 months; (for ref only)  Heroin and Cocaine combined 29.868 months;

(b)  Conversion test: all to Heroin and Cocaine combined 42.55 months for 5.153 grammes; all to ICE 38.736 months for 0.57 gramme[3]; and

(c)  Ratio test: 1.06/1.63 x 29.868 (Heroin and Cocaine combined)  + 0.57/1.63 x 43.824 (ICE)  = 34.74 months.

32.  I also noted that the ratio test result is actually less than the arithmetical starting point for ICE alone ie 38.736 months.  For this reason, I shall ignore the result of the ratio test.

33.  For Charge 1, I shall adopt an initial starting point of 42 months’ imprisonment.  Because of the presence of the three aggravating factors identified above, I shall enhance that starting point by 6 months (totality considered)  to arrive at a final starting point of 48 months’ imprisonment.

34.  For Charge 2, I shall adopt a starting point of 18 months’ imprisonment.

35.  Mr Ho pleaded guilty to the charges in good time for which he shall be entitled to the customary 1/3 sentencing discount.  There are no other mitigating factors of weight to justify another sentence reduction.

36.  Although the two offences occurred at the same place and at the same time, the offence subject of Charge 2 added to the gravity of the whole criminal activity in that the conduct of keeping a divan provided convenience to the drug users for consuming drugs hence boosted the business of trafficking.  Some degree of consecutiveness will have to apply to the sentences even taking into account the principle of totality.

37.  Before arriving at the final aggregate sentence, I would step back to look at it to ensure it is a fair, just and balanced sentence in all the circumstances of the offences and the offender.

(Mr Ho, please stand)

38.  For Charge 1, the sentence is 32 months’ imprisonment.

39.  For Charge 2, the sentence is 12 months’ imprisonment.

40.  I order that 4 months of the sentence on Charge 2 do run consecutively to the sentence on Charge 1, making an aggregate sentence of 36 months’ imprisonment.