HKSAR v. HO WAI TAT

DCCC 1415/2024

[2025] HKDC 2191

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1415 OF 2024

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REASONS FOR SENTENCE

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1.  Mr Ho pleaded guilty before me to one charge of Trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Particulars are that he, on 19 June 2024, at Cheung Wong Road near Mong Kok Road, Mong Kok, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 4.76 grammes of a solid containing 4.10 grammes of cocaine, and 2.08 grammes of a solid containing 1.71 grammes of ketamine.

Facts admitted by Mr Ho

2.  On 19 June 2024, at about 1330 hours, at the junction of Cheung Wong Road and Mong Kok Road, Mong Kok, Mr Ho was acting furtively.  Police constable PW1 on patrol duty saw what happened and stopped Mr Ho.

3.  Upon search of Mr Ho, a wallet containing the following items was found inside Mr Ho’s bag:

(a) 16 plastic bags containing a total of 4.76 grammes of a solid containing 4.10 grammes of cocaine (E1); and

(b) 3 plastic bags containing a total of 2.08 grammes of a solid containing 1.71 grammes of ketamine (E2).

4.  Mr Ho was arrested at the scene.  Under caution, Mr Ho admitted knowledge and ownership of the dangerous drugs.

5.  After Mr Ho was taken back to the police station, two mobile phones and cash of $16,445.40 were seized from him.

6.  Mr Ho now admits that he was in possession of E1 and E2 for the purpose of unlawful trafficking.

Criminal record

7.  Mr Ho has 22 previous convictions 4 of which (recorded in 1999 to 2003) were related to possession of dangerous drug.

Antecedents

8.  Mr Ho is aged 53 (almost 52 at the time of the offence), educated to secondary 4 level, was a ship repairman at the time of arrest.  He was last discharged from prison in 2002.  Mr Ho’s family includes his wife and two sons.

Mitigation

9.  Mr David Iu of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Ho.  The following is a summary of the mitigation submissions.

10.  Mr Ho is married.  His wife (48 and in court to give support) has been working as a waitress (earning $16,000 a month at the time of offence).  Their two sons in their twenties are unemployed.  Up to the time of arrest, Mr Ho has been a freelance ship repairer for about 15 years earning about $20,000 a month.  Mr Ho is a responsible husband and contributed around $10,000 per month towards his family’s living expenses.

11.  Mr Ho committed the offence because he wanted to earn some quick money. He trafficked in the sense that he obtained the drugs for a colleague in return, if successful, for a reward of $1,500.  He never received the reward.

12.  Mr Ho was foolish and has been regretful since arrest.

13.  Mr Iu asked the court to consider the following factors before passing a hopefully lenient sentence on Mr Ho:

(a) Mr Ho has no identical previous convictions;

(b) Mr Ho pleaded guilty at the earliest opportunity and does not allege “self-consumption” thus saving the court’s time;

(c) Mr Ho will be able to take care of his family if released earlier; and

(d) Although two kinds of drug are involved, it is hoped that the court will exercise its discretion not to enhance the sentence too much.

14.  In the present case, there were 4.10 grammes of cocaine and 1.71 grammes of ketamine.

15.  Mr Iu worked out the results of the three cross-checking tests as follows:

(a) Absurdity test: about 3 years 8 months if all cocaine; about 3 years if all ketamine;

(b) Conversion test: about 3 years 4 months if all converted to cocaine; about 3 years 7 months if all converted to ketamine; and

(c) Ratio test: about 3 years 6 months.

16.  Upon enquiry by the court, Mr Iu conceded that Mr Ho was an actual trafficker and not just a courier.

17.  As regards the cash found on Mr Ho, Mr Iu submitted that it was not proceeds of drug trafficking, but was the unspent balance of a larger sum of $87,000 TAVAS (traffic accident related) compensation received by Mr Ho on 6 February 2024.  Mr Iu submitted on instructions that Mr Ho never deposited the compensation into a bank account but has kept it in his wallet for spendings on work-related equipment and tools.

18.  As regards the two mobile phones, Mr Iu submitted that they were not used for drug trafficking but were for Mr Ho’s personal use as it is common for anyone to have more than one mobile phone.

Sentence

19.  Mr Ho has never had a drug trafficking conviction record; his last possession record dated back to 2003 for which he was fined.  I shall treat him as someone without a similar record.

20.  It is abundantly clear that Mr Ho was financially tight at the time of the offence; for otherwise he wouldn’t have to deal in drugs for a mere profit of $1,500 as he claimed in mitigation.

21.  I do not believe Mr Ho’s claim that the cash found on him was the remainder of the TAVAS compensation which he said he never deposited into a bank.

22.  I am prepared to and do draw the irresistible inference that the cash was proceeds of drug trafficking in light of its quantum, and the packaging and amount of drugs found on Mr Ho.

23.  For the two mobile phones though, I do not find sufficient evidence to enable me to determine which of them has/have been used for drug trafficking purpose.  As a result, I will return both of them to Mr Ho.

24.  I shall abide by the six-step approach of sentencing a drug trafficker as set out in HKSAR v Harry Jane Yusuph [2021] 1 HKLRD 290.

25.  The cross-check test results of Mr Iu came close enough to my own calculations.  I shall adopt his figures.

26.  I will adopt the ratio test result as the initial starting point.  Mr Ho was an actual trafficker.  So I will have to enhance the starting point on the ground of his role and culpability.

27.  The presence of more than one type of serious drug is an aggravating factor such that the starting point needs to be increased again.

28.  For the two above-mentioned features, in Mr Ho’s case, I will increase the starting point by 5 months to reach a final starting point of 47 months’ imprisonment.

29.  Mr Ho pleaded guilty 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.  However, as an act of mercy, I shall round down the resulting figure to the nearest whole month to obtain the sentence.

30.  I pause to consider if the sentence thus obtained is fair, just and balanced having regard to the overall circumstances of the offence and the offender.  I am satisfied that it is.

(Mr Ho, please stand)

31.  The sentence for Mr Ho is 31 months’ imprisonment.