HKSAR v. LAM CHOI KIT

HCCC 69/2021

[2021] HKCFI 2074

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 69 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of trafficking in dangerous drugs[1] and one count of conspiracy to traffic in dangerous drugs[2] before a magistrate, admitted to the summary of facts, and was committed to the Court of First Instance for sentence. He confirmed his pleas and admissions on the day of sentence and was duly convicted.

Summary of facts

2.  The defendant was the driver of a taxi (TM2008)  that was stopped by police officers at around 9:45pm on 11 June 2020 during an anti-narcotic operation.  The defendant was the only person in the vehicle.

3.  A body search was conducted and a plastic bag was found from the right front trousers pocket of the defendant.  Inside the bag were 3.37g of a solid, which was later found to contain 1.61g of ketamine and 1.15g of fluorodeschloroketamine; and a folded up $100 banknote with 0.04g of a solid containing ketamine and fluorodeschloroketamine.

4.  Upon search of the taxi, a red shopping bag was found from under the driver seat, which contained the following items:

(1)  A green pencil bag with 23 resealable plastic bags, containing a total of 181.98g of a solid which had a narcotic content of 178.67g of methamphetamine hydrochloride, commonly known as the dangerous drug ‘ice’.

(2)  A red pencil bag with 21 resealable plastic bags, containing a total of 66.55g of a solid with 45.36g of ketamine and 9.07g of fluorodeschloroketamine.

(3)  A yellow pencil bag with 31 resealable plastic bags, containing a total of 5.73g of a solid with 4.64g of cocaine.

(4)  A green plastic bag containing 4 resealable plastic bags with a total of 17.8g of cannabis in herbal form.

5.  In sum, a total of 178.67g of ice, 46.97g of ketamine, 10.22g of fluorodeschloroketamine, 0.04g of a solid with ketamine and fluorodeschloroketamine, 4.64g of cocaine and 17.8g of herbal cannabis were found.  These are the narcotic contents of count 1.

6.  A plastic box with $30,989 cash, and a plastic bag with $4,900 cash were also found on the front seat.

7.  The defendant was arrested and said under caution that he trafficked in the drugs because he owed a large amount of gambling debt.

8.  In the subsequent video recorded interview, the defendant claimed that he owed around $800,000 and the creditor had threatened to harass his family if he failed to repay.  The defendant promised someone to deliver dangerous drugs for three months to repay the debt.  It was an unknown male called ‘Ah Fung’ or ‘lion’ who would contact the defendant to give him instructions.  At the time of his arrest, the defendant had been delivering dangerous drugs for about a month.

9.  The defendant was offered $100 reward per transaction and he usually completed around 10 transactions per day, working five days a week.  On the day of his arrest, he had completed five transactions, and was on his way to make another delivery when he was intercepted.  At the end of each day of deliveries, the defendant would return undelivered drugs and the money received from the drug transactions to the person who had given him the instructions. This agreement to traffic in dangerous drugs is the subject matter of count 2.

10.  The estimated street value of the seized drugs was about $143,349 to $151,852.

11.  The defendant admitted that he was in possession of all the drugs seized in count 1 for the purpose of unlawful trafficking.

12.  The defendant also admitted that he had conspired with an unknown man to unlawfully traffic in ice, ketamine, fluorodeschloroketamine, cocaine and cannabis between 1 May 2020 and 11 June 2020.

Previous convictions

13.  The defendant has spent convictions for two charges of possession of dangerous drugs where he was sentenced to 15 months’ probation in 2007. Given the lapse of time and their relatively minor nature, these previous convictions are not viewed as aggravating factors.

Background and mitigation

14.  The defendant is now 42.  He left Hong Kong for the United States when he was 13 and returned after his graduation when he was around 20.  He had had bartender training there and upon his return he worked at a restaurant.  Over time, he became famous and was frequently invited to attend different functions to share and teach about bartending.

15.  In around 2018, due partly to the economy and partly to social events, the defendant lost his job in the catering industry and took up employment as a taxi driver.

16.  The defendant was living with his ailing 85-year-old father and 73-year-old mother at the time of the offences.  They are retired and living on savings and financial support from relatives.  The defendant was earning $20,000 per month and would contribute around $8,000 towards family expenses while taking care of his parents.

17.  The defendant intends to enroll in the Bachelor of Social Sciences distant learning program of Open University when in prison and has been scheduled for an admission interview.  It is his belief that he can still contribute to society upon his release, such as by doing more volunteer work to help the less privileged.  He wishes to still be able to take care of his parents upon his release.

18.  Letters from the defendant’s parents, brother, friend and social club speak to the defendant’s being a filial and caring son, a helpful friend and someone with a good heart.

Sentence

19.  The maximum sentence on conviction upon indictment for the offence of trafficking in a dangerous drug is that of a fine of $5 million and imprisonment for life.

Count 1

20.  Sentences in trafficking cases are dependent on the nature and quantity of the drugs being trafficked.  Different sentencing guidelines laid down by the Court of Appeal would apply based on the type of drugs involved.

21.  Since the trafficking involves multiple types of drugs, the combined approach is to be adopted.  The first step is to establish the guideline starting point for the individual drugs in count 1, with the ice being recognized as the more potent drug, and then adjust the sentence upwards to take into account the remaining narcotic contents.

22.  Given that the prosecution accepts that the evidence is unclear as to the actual narcotic contents of the 0.04g of solid with ketamine and fluorodeschloroketamine, and given that this is a relatively small amount, I will ignore this 0.04g of solid.

23.  Trafficking in 178.67g of ice would lead to a guideline starting point of 154 months’ imprisonment[3].

24.  Trafficking in 4.64g of cocaine would lead to a guideline starting point of 41 months[4].

25.  Trafficking in 57.19g (from 46.97g plus 10.22g)  of ketamine and fluorodeschloroketamine would lead to a guideline starting point of 73 months[5]. It is accepted by both the prosecution and the defence that sentencing guidelines for ketamine are equally applicable to fluorodeschloroketamine[6]. For convenience, I will refer to the two types of ketamine collectively as ketamine.

26.  Lastly, given that the herbal cannabis involved amounts to less than 10% of the weight of ice in question, and the sentence applicable to the herbal cannabis would likely be negligible when compared to the sentence to be imposed for the rest of the narcotics, I will exercise my discretion and ignore the herbal cannabis when sentencing the defendant.

27.  The total sentence for the three drugs would be 268 months.  The next step is to cross-check this possible sentence by the following three tests.

The absurdity test[7]

28.  The combined weight of the ice, ketamine and cocaine is 240.5g. Assuming the entire quantity is the more potent drug of ice, the guideline starting point would be 168 months.

29.  It is obvious that a sentence of 268 months would be absurd and adjustments must therefore be made.

The conversion test[8]

30.  The conversion method is to convert all drugs into the most potent drug, being ice, by finding out what amount of ice would have attracted the same sentence for the amount of cocaine and ketamine.

31.  57.19g of ketamine has a starting point of 73 months.  A quantity of ice that would lead to a sentence of 73 months is that of 7.69g.

32.  4.64g of cocaine has a starting point of 41 months.  A quantity of ice that would lead to that same starting point is that of 1.06g.

33.  The total converted amount of ice would, therefore, be 187.42g (178.67 + 7.69 + 1.06).  This converted amount would lead to a guideline starting point of 156 months, which is two months more than the base starting point of 178.67g of ice.

The ratio test[9]

34.  The third means of cross-checking is to apply the ratio test.

35.  The ice accounted for 0.74 in weight of the total quantity seized (178.67/240.5); the ketamine for 0.24 (57.19/240.5); and the cocaine for 0.02 (4.64/240.5).

36.  240.5g of ice would have attracted a sentence of 168 months.  240.5g of ketamine that of 100 months; and 240.5g of cocaine would be 151 months.

37.  Applying their individual ratio to the sentence assuming they are of a single drug would result in sentences of 124.32 months for the ice; 24 months for the ketamine; and 3.02 months for the cocaine.  The total sentence on application of the ratio test would therefore be 151.34 months.

38.  Having applied the three cross-check tests, I find that an upward adjustment from the sentence for 178.67g of ice by two months is the proper starting point.  That is to say, a starting point of 156 months’ imprisonment.

Aggravating factor

39.  It is trite law that trafficking in more than one type of dangerous drugs is an aggravating factor, for which I will enhance the defendant’s sentence in count 1 by three months, leading to a sentence of 159 months’ imprisonment.

40.  It is trite law that the personal circumstances of the defendant, such as his being in debt, would not amount to a mitigating factor that would warrant a departure from the sentencing guidelines or a reduction in sentence in serious offences such as trafficking in a dangerous drug, and I would not do so.

41.  I also find that the fact that the defendant has been cooperative is not sufficient reason to give him a further discount in sentence.  His cooperation would be subsumed in the one-third discount he is to be given for his guilty plea.

42.  The defendant is, therefore, sentenced to 106 months’ imprisonment for count 1 after the full one-third discount is granted in recognition of his timely plea of guilty.

Count 2

43.  The maximum sentence for conspiracy to traffic in a dangerous drug is the same as that of the underlying offence of trafficking in a dangerous drug.

44.  On the day of the defendant’s arrest, he had a total of 75 resealable plastic bags each with ice, ketamine, or cocaine inside.

45.  The agreement, or conspiracy, was for the defendant to be the delivery person for three months.  The defendant said he would work five days a week. The period of conspiracy as particularized in count 2 is from 1 May to 11 June.  The defendant would have, based on his statement in the video recorded interview, worked a total of around 30 days up to the date of arrest, with about 10 transactions per day, delivering dangerous drugs for a reward of $100 per transaction.

46.  The defendant is not able to inform the court how much he had made as at the time of his arrest, because the people that the defendant was delivering for were the same people who had lent the money to the defendant at a high interest rate and they told the defendant that the money payable to him will be used to set off the debt.  The defendant had not received any money for his effort.

47.  At around 10 transactions per day, and with the defendant admitting that he had been delivering for some 30 days, I find that it can be safely inferred that the defendant must have conspired to traffic in more than the amount of drugs found in the taxi on the day of his arrest.

48.  What I will do is to adopt the same starting point of 156 months’ imprisonment for count 2, enhance it by three months for the same aggravating factor of the conspiracy being to traffic in different types of drugs to that of 159 months’ imprisonment, resulting in a sentence of 106 months after plea, and then apply the totality principle for the final sentence which will reflect the defendant’s overall culpability.

Totality

49.  The defendant has an excellent history of employment.  He is not only a good bartender but also a good teacher and ambassador for the profession.  As the defendant’s father told the court in his beautifully written letter, things fell apart when the defendant lost his beloved job and had to end his bartending career.  He made the mistake of taking to gambling and borrowing money from illegal money lenders, leading eventually to the commission of the present offences.

50.  But for the defendant’s own confession, the police would not have known about the conspiracy in count 2.  The defendant could very well have stayed silent and just be sentenced for the drugs in the taxi but he, as Mr. Booth stressed, decided to cooperate fully with the police.

51.  Taking a step back, bearing in mind all the circumstances of the case, I order that two months of the sentence for count 2 be served consecutively to that of count 1, the balance concurrently.

52.  The defendant is, therefore, sentenced to a total of 108 months’ imprisonment (nine years)  for the two counts after plea.