HKSAR v. SHEK CHUN HIN

DCCC 633/2018

[2019] HKDC 200

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 633 OF 2018

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REASONS FOR SENTENCE

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1.  This is a case of police stop and search in the street leading to the discovery of drugs.

2.  The defendant pleaded guilty before me to one count of trafficking in dangerous drugs. The drugs in question are 15.30 grams of a powder containing 9.63 grams of Ketamine, 6.62 grams of a crystalline solid containing 6.46 grams of methamphetamine hydrochloride (commonly refer to as ice) and 2.72 grams solid containing 2.29 grams of cocaine.

3.  In the afternoon of 13^th March 2018, police officers patrolling along Canton road wanted to stop the defendant for questioning, but as soon as he saw the officers approaching, he took to his heels, but the officers soon had him under control after a brief chase.

4.  In the briefcase that the defendant was carrying, the officers found the drugs in this case – they were separately put in 29 small plastic bags- 11 bags of Ketamine, 4 bags of ice, and 14 bags of cocaine.  Also found on him were two mobile phones and cash of HK$6,767.40 and RMB 108.70.

5.  The estimate street value of the Ketamine, ice and cocaine is approximately $7,500, $3,600 and $3,400 respectively.    

6.  Under caution, the defendant told the officers that an acquaintance of his by the name of “Ah Wah” told him to bring the drugs in the briefcase to a wet market near the Langham Place to give it to another person who would then give him a reward for so doing. He is not a drug addict and has never used any drugs before.

7.  The defendant is a young man of 23 who has no prior convictions, albeit he committed the present offence while on police bail for another offence pending further investigation.

8.  In mitigation, the court heard that ever since the defendant was born, his mother has deserted the family. He came from a fishing family and the defendant is a fisherman too. He is single and lives with his father and two sisters. The grandmother, father and uncle are in court today to show concern and support for the defendant.

9.  Counsel for the defendant said that the reason the defendant committed the offence was because he needed money to spend with his girlfriend, but after this incident, his girlfriend had broken up with him and the defendant felt devastated.

10.  Counsel further said that it was one of his acquaintances asked him to deliver the drugs to another, but the defendant was kept in the dark as to the types and quantity of drugs involved. 

11.  Counsel stressed that the defendant was clearly being used by others to act as a courier of drugs; since there was no discovery of drugs packaging tools like the electronic scale, empty plastic bags etc, the defendant was not engaging in the retail end of trafficking. He had made frank admissions to the police upon arrest, counsel asked the court to be as lenient as possible. 

12.  The relevant sentencing guidelines for the above three types of drugs are as follows:-

Ketamine	:	over 1 g to 10 g	-	2 to 4 years’ imprisonment;
Cocaine	:	up to 10 g	-	2 to 5 years’ imprisonment;
Ice	:	up to 10 g	-	3 to 7 years’ imprisonment.

13.  Applying the above guidelines to the types of drugs in the instant case gives the sentence for each type as follows:

a. 9.63 grams of ketamine: 47 months;

b. 6.46 grams of ice : 67 months;

c. 2.29 grams of cocaine : 32 months.

14.  Take the most potent drug for instance, i.e. the ice. The amount he admitted trafficking (6.46 grams) would already warrant a sentence of 67 months.

15.  With the help of the parties, the court is provided with the overall sentence of each of the 3 different tests, which would give us an idea what the totality of the sentence is like:

a. Absurdity test: 91 months;

b. Ratio test : 68 months;

c. Conversion test: 78 months.

16.  It is clear from the above the ratio test does not closely reflect the reality, for example, one of the drugs in the case, i.e. ice, would have given more or less the same sentence (67 months) as the overall sentence of ratio test (68 months). If taken into account the other two types of drugs, the overall sentence should be much longer than 68 months.  

17.  Turning to the instant case, as I have mentioned in paragraph 14, trafficking in ice only would give a sentence of 67 months. Now taking into account the trafficking of the other two types of drugs, I would add 11 months on top which would give an overall starting point up to 78 months. (I like to make it clear that in working out the overall staring point of 78 months, the court has not considered the mixing of different drugs into cocktail to enhance potency as an aggravating factor as stipulated in Wong Kin Kau CACC 269/2009)

18.  Insofar as mitigation is concerned, apart from his guilty plea, there isn’t anything of substance. And the Appellate Court has time and again stressed that for serious offences like trafficking, an offender’s clear record, young age etc, as mitigating factors would carry little weight.

19.  As his plea is timely, he is entitled to the full 1/3 discount. Giving the appropriate discount, the starting point is reduced to 52 months. There being no reasons for further reduction in sentence, the defendant is therefore sentenced to 52 months’ imprisonment.