HKSAR v. LAI KIN YAN

DCCC 985/2023

[2025] HKDC 38

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 985 OF 2023

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to a charge of trafficking in dangerous drugs, the content of which are as follows:

(a)  13.34g of cocaine

(b)  15.03g of ketamine

Summary of facts

2.  At around 2:00 p.m. on 23 May 2023, the Police saw the Defendant alight from a vehicle and entered into a public toilet in Chun Wah Road.  He was intercepted when he came out from the toilet.

3.  During a body search, a car key of the vehicle and one mobile phone were found on him.

4.  During the vehicle search, the drugs as stated in the charge were found and they were packed in numerous smaller bags:

(a)  One lot have 37 smaller re-sealable plastic bags were found inside a purple color plastic bag which was hanged on the gear stick;

(b)  The other lot which have 7 resealable plastic bags were found inside the pocket compartment of the driver door.

5.  Other items were also found:

(a)  2 digital scales;

(b)  Various sizes of some re-sealable plastic bags;

(c)  HK$18,030 cash and 2 mobile phones.

6.  Under caution, the Defendant admitted that the dangerous drugs belonged to him and they were for his self-consumption.

7.  In a video-recorded interview, the Defendant admitted that:

(a)  He bought the drugs for about HK$10,000 from someone in Hunghom;

(b)  He borrowed the vehicle from a friend a year ago;

(c)  The cash, those re-sealable plastic bags and the three mobile phones were all belonged to him.

Criminal record

8.  The Defendant has one previous record of dangerous driving in 2022.

Background

9.  The Defendant is 51 years old.  He has separated from his wife. Their two adult children are students in Australia and Hong Kong respectively.  His father is 85 years while his mother passed away in October 2023 when he was in remand.  The Defendant was particularly regretful for committing the present offence, as he could not attend his mother’s funeral.

10.  There are a number of letters before me of which I have read them all.

11.  The Defence asked for lenient sentence as the Defendant has determined to reform himself.

12.  I am also told that the defendant has been a drug addict for about 10 years; he took cocaine and ketamine before his arrest.

Sentence

13.  According to the sentencing guideline in R v Lau Tak Ming [1990] 2 HKLR 370 and AG v Rojas [1994] 1 HKC 342 9 (heroin tariff also applicable to cocaine), for a narcotic content of 13.34g of cocaine, it attracts a sentence of 5 years 3 months imprisonment (63 months).

14.  As to a narcotic content of 15.03g of ketamine, according to the sentencing guideline in S of J v Hii Siew Cheng [2009] 1 HKLRD 1, it attracts a sentence of 4 years and 3 months imprisonment (51 months).

15.  The Defence accepted to take the combine approach in sentencing, citing the 7 steps methodology in calculating the starting point as stated in the judgement of HKSAR v Islam S M Majharul [2020] 3 HKLRD 146.

16.  It is further accepted that cocaine should be used as the base drugs in calculating the 3 tests and the results are as follows :

(a)  Absurdity test : with all the narcotics converted to the most potent drug ( cocaine )  , the sentence is capped at 6 years and 4.5 months;

(b)  Conversion test : 5 years and 10 months;

(c)  Ration test : 5 years and 7 months.

17.  The Defence said that the role of the Defendant was a courier who delivered the drugs to others.  That placed him under the lowest rank in the trafficking hierarchy.

18.  As such, I take 5 years and 3 months as the starting point and increased the sentence by 4 months to take into account of the quantity of ketamine to arrive at a sentence of 5 years and 7 months.

Aggravating factor

19.  The Defence accepted that there is aggravating factor in the present case as there were 2 types of drugs involved.  As said in the case of HKSAR v Choy Wing Sing CACC 252/2021 at paragraph 6 that:

(a)  Trafficking involved 2 drugs, which would have catered for a wider market;

(b)  Ketamine is commonly used with another drug to prolong its effect;

(c)  The drugs were contained in packets for ready distribution to a larger number of users.

20.  In such circumstances, a 2 months’ enhancement of sentence is warranted. The sentence is by now arriving at 5 years and 9 months.  (5 years and 3 months + 4 months + 2 months)

21.  The Defendant is entitled to ¹/₃ discount, the sentence comes down to 3 years and 10 months.

Self-consumption

22.  I now come to the issue of self-consumption.

23.  As stated in the case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 that when all or part of the drugs was for the Defendant‘s self-consumption, it is a mitigating factor, the range of discount should be 10 -25 % of the basic starting point.

24.  The Defence relied on 3 reasons for the claim of self-consumption.

(a)  That is the exhibit E6 – which was wrapped in tissue paper, containing 3.46g of a solid containing 2.78g of cocaine. That represented 20.8% of the total quantity of 13. 34g of cocaine. The Defendant accepted that the remaining portion of the drugs were for trafficking. The Defence also accepted that the 20.8% does not meet the thresh hold of “significant proportion”.

(b)  The contemporaneous support from the urine test, which showed that the result was cocaine positive;

(c)  The Defendant said under caution that all the drugs were for his own consumption.

25.  As said in the case of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and HKSAR v Cheung Wai Man [2019] 1 HKLRD 817 that “there is a real danger of abuse in this avenue of mitigation, hence a sentencing court should look with greatest care at all the surrounding circumstances” in order to decide whether or not the mitigation of self-consumption is made out.

26.  The Defence informed me that the Defendant would not give evidence in the present claim.

27.  The applicable principle for self-consumption can be found in the case of Wong Suet Hau.  With that principle in mind, I come to consider the following factors in the present case:

(a)  (i)  The total quantity of cocaine is 13.34g (HK$26,390)

(ii)  The total quantity of ketamine is 15.03g (HK$8,913)

(iii)  The total amount of the drugs was about HK$35,000.

(b)  The Defendant said under caution that he paid for HK$10,000 for the drugs. Clearly, it cannot be true as there is a great difference of about $25,000; ( 35,000 - $10,000 )

(c)  Each gram of cocaine is about HK$1,978 (HK$26,390/13.34g), that means for 2.78g is about HK$5,500;

(d)  I have make enquiry from the Defence regarding the fact that the Defendant was unemployed at the material time. I am told that the Defendant returned from Malaysia in 2020. He has been unemployed for some 3 years at the time of his arrest. He relied on his family for financial support. I am further told that he could not provide any evidence to support this assertion;

(e)  Given the fact that the Defendant was unemployed, in my view, he simply could not afford to spend HK$5,500 to buy the drugs in E6;

(f)  The drugs were found from the vehicle together with other items such as scales and re-sealable plastic bags;

(g)  The Defendant said under caution that he borrowed the car from a friend a year ago. However, the Defendant was the only one to use the car. Today, I am told that a Mr. Chan purchased the car a year ago;

(h)  As we all know that cars depreciated progressively by years. The question to ask why his friend would be so generous to let him use the car for one year? What does his friend benefit from the lending of the car to him?

(i)  In the vehicle, there was no presence of paraphernalia associated with the drugs, except the two scales that were used to weight drugs. There were also some resealable plastic bags with various sizes. Obviously, they were used to pack different quantity of drugs. It has nothing to do with self-consumption. All the drugs were packed in smaller re-sealable plastic bags and they were ready for re-distribution;

(j)  Coming to the urine test report, it showed a cocaine positive in his body after the arrest. I considered this piece of evidence is neither here nor there. A drug user can also be a drug trafficker. There are obvious commercial reason why he was so especially when he was unemployed;

(k)  When he was arrested, he said that all the drugs were for his own consumption was clearly untrue:

(i)  As he was financially unable to purchase those drugs in question and

(ii)  There were no presence of paraphernalia associated with the drugs in the vehicle;

(iii)  He was trying to undermine his criminality/ culpability;

(iv)  He did not specify that E6 was for his consumption.

(l)  The mere fact that the drugs in E6 was wrapped in tissue paper is not a conclusive evidence to indicate that the packet was for his own consumption as E6 was found together with other drugs by the driver door’s pocket compartment;

(m)  He has 3 mobile phones with him, that provided him with a bigger network of contacts with the drugs users;

(n)  His previous conviction was dangerous driving in 2022, totally unrelated to the present offence.

28.  In any event, the Defence is aware that “mere assertion from the bar table is not sufficient to establish a claim of self-consumption.  There must be credible and reliable information and material in an acceptable form to establish such a claim”.  I refer to the case of Cheung Wai Man.

29.  The onus of satisfying the sentencing court that the drugs were for his consumption rested on the Defendant upon a balance of probability.  (HKSAR v Cheng Chee Meng [2008] 6 HKC 407 para 40 refers)

30.  To this end, having considering all above factors, I conclude that the Defendant’s claim for self-consumption has not made out.

31.  The Defendant is not entitled any discount in sentence.  I also refuse to exercise my discretion to reduce any part of the sentence, as this discretion should not be exercised in such a way to compromise the findings.

32.  Finally, having considered all the mitigating factors before me including that the Defendant mother passed away during this period of custody, I reduce 2 months of imprisonment.

33.  The final sentence is now at 3 years and 8 months.  (3 years and 10 months – 2 months).

34.  The Defendant is ordered to serve a sentence for a period of 3 years and 8 months.