HKSAR v. YAU SHU KO ENOCH AND ANOTHER

DCCC 643/2021

[2022] HKDC 394

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 643 OF 2021

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REASONS FOR SENTENCE

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1.  The 2 defendants in this case face two joint charges of Trafficking in Dangerous Drugs[1]. D1 pleaded guilty to both charges on the first day of trial. D2 was convicted after trial.

2.  Charge 1 alleges that the defendants on 17 December 2020 together illegally trafficked in 16 transparent re-sealable plastic bags of solids found inside the kitchen of a residential unit on the ground floor of no. 311 Tuen Tsz Wai (hereinafter “the unit”), which contained a total of 3.89g of cocaine, for the purpose of trafficking in them.

3.  Charge 2 alleges that they together on 18 December 2020 illegally trafficked in 17.99g of cocaine and 3g of ketamine found from inside a shoe box on an iron rack that was located in a stone hut a short walk from the unit.

Summary of facts

4.  Police officers laid ambush in the vicinity of the unit on the evening of 17 December 2020.  A male, later known as Ng, was seen coming down a pathway from the direction of the unit.  He was intercepted by the officers in ambush.  Ng is neither a defendant nor a witness in this case.

5.  The officers brought Ng back to the unit and knocked.  D1 opened the door and the Police entered and executed a search warrant on the unit.

6.  D2 was sitting on the sofa when Police entered the unit.  He was searched and a key to the main door of the unit was found on him, together with cash of $9,180.

7.  D2 told one of the officers that he occupied the room directly adjacent to the living room (hereinafter as “room A”).  Room A was searched.  A mainland driving license in D2’s name and 3 keys were found on the window sill of the set of windows near the door of the room.

8.  One of the 3 keys was later found to unlock the door of one of 4 stone huts located near the unit.  39 transparent re-sealable plastic bags with cocaine and ketamine inside, as well as 433 unused transparent re-sealable plastic bags, one plastic container containing small amount of cocaine, a spoon and a cut up playing card containing traces of white powder, and one electronic scale were found from inside a shoe box on a five-tier iron rack inside the hut.  D2’s thumb print was later lifted from the edge of the horizontal shelf divider that the shoe box was on.

9.  Back in the unit, the kitchen was searched and the particularized items in charge 1 were found lying openly on top of the stove service area and next to the sink in plain sight.

10.  Investigation revealed that D2 was the person who entered into a rental agreement dated 17 November 2020 with the landlord at a monthly rental of $12,000.

11.  I found, after trial, that D2 was in joint possession of both the dangerous drugs in the kitchen and the stone hut, knowing that they were some kind of dangerous drugs, for the purpose of trafficking in them illegally.

Previous convictions

12.  D1 is of previously clear record.

13.  D2 has two previous convictions back in 2005 when he was sentenced to 12 months’ probation for blackmail and common assault.

Mitigation

D1

14.  D1 is 19, educated up to Form 3.  He worked as a labourer at a logistics company earning $10,000 per month.  He was living with his friends in the unit at the time of the offences.

15.  The defendant’s family consists of his mother, an elder and a younger brother who live in Tung Chung.

16.  Ms Ko tells the court that D1 has had a difficult upbringing.  He was placed under the care of Po Leung Kuk orphanage not long after he was born and stayed until he was 14.  When he was about 15, he returned to live with his family for a short time before moving out to live with friends.

17.  D1’s family has been on social welfare in the past years.

18.  D1’s maternal grandfather suffers from colon cancer, while his mother has been battling with rectal cancer for the past year.  The defendant has been in emotional turmoil.

19.  Ms Ko suggests that D1 thought he could earn some money to sustain himself as well as support his mother’s medical fees.

20.  Before D1’s arrest, he was on the way to obtaining licenses for registered electrical work, something which he was interested in together with car mechanics.  It is D1’s hope to be able to work in the electromechanical field with electric cars after he served his sentence.

D2

21.  D2 was born in China and is 33 years old.  He is single and was living at the premises in question together with D1 and the other man.  According to his evidence given in court, he used to work as a construction site worker earning more than $30,000 per month.

22.  It is Mr Davies’ submission that despite his conviction, there is no evidence to suggest that D2 was anything more than a minor player who at most helped store the dangerous drugs.  There is also no suggestion that he was involved in the packaging or distribution or that he was a mastermind.

Sentence

23.  The maximum sentence on conviction upon indictment for trafficking in dangerous drugs is imprisonment for life.

24.  Given that I find that the defendants trafficked in the drugs in both charge 1 and 2, I find that it is proper to sentence them on the basis of the total quantity of narcotics found, which is 21.88g of cocaine and 3g of ketamine.

25.  According to the applicable sentencing guidelines[2], the starting point for trafficking in 21.88g of cocaine and 3g of ketamine is 71 and 29 months’ imprisonment respectively.

26.  Since there is more than one type of dangerous drugs to consider, and the individual approach, ie, adding up the two sentences above to 100 months, is clearly excessive, I will adopt the combined approach[3].

Absurdity test

27.  If all 24.88g of the narcotics were the more potent drug of cocaine, the sentence would be 73 months’ imprisonment.  A final sentence exceeding this figure, without considering any aggravating factors, could be regarded as absurd.

Conversion test

28.  Using cocaine as the base drug, the quantity of cocaine that would lead to a sentence of 29 months (being the sentence for 3g of ketamine)  is 1.5g.  Adding this 1.5g to the 21.88g of cocaine would result in 23.38g, which would have a nominal starting point of 72 months.

Ratio test

29.  Out of the total narcotic weight of 24.88g, cocaine and ketamine takes up 87.94% and 12.06% respectively.

30.  The guideline sentence for 24.88g of cocaine is 73 months, 87.94% of this is 64.2 months.

31.  The sentence for 24.88g of ketamine is 57 months, 12.06% of this is 6.8 months.

32.  Adding the proportionate sentences together leads to a sentence of 71 months.

33.  The combined approach sentence on all drugs in both charges

34.  Having considered the quantity of drugs involved and the result of the different tests, I find that the proper overall starting point for all the drugs is 72 months’ imprisonment.

35.  It is trite law that trafficking in more than one type of drugs (charge 2), and that committing the offence jointly with another (both charges)  are aggravating factors, for which I will enhance the starting point by 3 months (4.2%), taking it to 75 months.

36.  75 months’ imprisonment is, therefore, the overall starting point for all the narcotic contents in both charges, having taken into consideration the aggravating factors mentioned above.

37.  I move on to consider the individual sentences of the defendants.

D1

38.  First of all, although D1 is below 21 years old and s 109A of the Criminal Procedure Ordinance, Cap 221 applies, for offences as serious as trafficking in dangerous drugs and in the quantity and circumstances as charged, I find that the only sentencing option is an immediate custodial sentence.

Charge 1

39.  For the 3.89g of cocaine in charge 1, I adopt a starting point of 38 months’ imprisonment.  I will enhance this sentence by 1 month (2.6%)  for it being committed together with others, leading to 39 months’ imprisonment.

40.  D1 is granted the full one-third discount for his timely plea of guilty and sentenced to 26 months’ imprisonment on charge 1.

Charge 2

41.  For the 17.99g of cocaine and 3g of ketamine in charge 2, having conducted the same exercise in application of the absurdity, conversion and ratio tests[4], I adjust the starting point of 67 months’ imprisonment for 17.99g of cocaine upwards by 1 month to take into account the 3g of ketamine, leading to the nominal starting point of 68 months’ imprisonment.

42.  For the aggravating factors of this offence being committed jointly with others, and that the trafficking involved more than one type of dangerous drugs, this sentence is enhanced by 2 months (2.94%)  to 70 months’ imprisonment.

43.  D1 is granted the full one-third discount for his timely plea of guilty and sentenced to 46 months’ imprisonment on charge 2.

D1’s totality

44.  Taking into consideration the above calculations regarding the total narcotic contents in this case, I order that 4 months of the sentence in charge 1 to be served consecutively to the sentence in charge 2, the balance to be served concurrently, resulting in a sentence of 50 months’ imprisonment for the 2 charges for D1.

45.  I will, however, further reduce this sentence by 3 months (6%)  given the unfortunate circumstances that had led D1, someone who is 19 years old and of previously clear record, to commit the present offences.

46.  47 months’ imprisonment is D1’s final sentence on the 2 charges.

D2

Charge 1

47.  For the 3.89g of cocaine in charge 1, I adopt a starting point of 38 months’ imprisonment.  I will enhance this sentence by 1 month (2.6%)  for it being committed together with others, leading to 39 months’ imprisonment.

Charge 2

48.  For the 17.99g of cocaine and 3g of ketamine in charge 2, I adjust the starting point of 67 months’ imprisonment for 17.99g of cocaine upwards by 1 month to take into account the 3g of ketamine, leading to the nominal starting point of 68 months’ imprisonment.

49.  For the aggravating factors of this offence being committed jointly with others, and that the trafficking involved more than one type of dangerous drugs, this sentence is enhanced by 2 months (2.94%)  to 70 months’ imprisonment.

Totality

50.  Taking into consideration the above calculations regarding the total narcotic contents in this case, I order that 5 months of the sentence in charge 1 to be served consecutively to the sentence in charge 2, the balance to be served concurrently.

51.  D2 was convicted after trial and there is to be no discount based on guilty pleas.  There are no mitigating factors to warrant a reduction in sentence.

52.  The final sentence for D2 is, therefore, 75 months’ imprisonment.