HKSAR v. CHEUNG HOI FU

DCCC 573/2022

[2023] HKDC 688

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 573 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant is charged with the following charges:

(a)  Charge 1: Possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134; and

(b)  Charge 2: Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.  The defendant pleaded guilty to both charges and admitted the summary of facts. He was convicted of both charges accordingly.

Summary of facts

3.  On the night of 12 March 2022, police officers were conducting an anti-drug operation in the area of Heng On Estate, Ma On Shan, New Territories (“the Estate”). At about 11:50 pm, the defendant drove a private car bearing registration mark XL7188 (“the Vehicle”)  to enter into the Estate. Police officers observed the defendant kept looking around and acted furtively. After the defendant left the Estate, police officers stopped the Vehicle at a traffic light at Hang Kam Street near Ma On Shan Recreation Ground, Ma On Shan, New Territories and conducted investigation on him.

4.  Body search was conducted on the defendant and a plastic bag containing 0.72 grammes of a crystalline solid containing 0.69 grammes of methamphetamine hydrochloride (“the Ice”)  was found in the left sock of the defendant.

5.  Police officers conducted further search on the Vehicle and found the following items:

(a)  Inside the storage box between the driver seat and centre console and wrapped in a piece of tissue paper:

(i)  Two plastic bags containing a total of 0.30 grammes of a solid containing 0.24 grammes of cocaine; and

(ii)  One plastic bag containing 0.58 grammes of a solid containing 0.49 grammes of ketamine.

(b)  Inside the false compartment between the dashboard and offside front door of the Vehicle:

(i)  8 plastic bags containing a total of 1.28 grammes of a solid containing 1.03 grammes of cocaine; and

(ii)  14 plastic bags containing a total of 8.35 grammes of a solid containing 7.08 grammes of ketamine.

6.  At about 12:40 am on 13 March 2022, the defendant was arrested for trafficking in dangerous drugs. Under caution, the defendant stated that he received HK$1,500 to traffic the drugs and some of the drugs were for self-consumption.

7.  A video-recorded interview was conducted with the defendant and he stated the following:

(a)  The Ice found on him was for self-consumption. He bought it from a stranger at HK$800;

(b)  He received HK$1,500 for trafficking the cocaine and ketamine seized from the Vehicle;

(c)  On 12 March 2022, he picked up the dangerous drugs and cash HK$1,500 from a bush in Mong Kok after receiving a call from a male. He has never seen that male;

(d)  He delivered two bags of cocaine in Mong Kok for a reward of HK$600;

(e)  He borrowed the Vehicle from a friend called “Ah Fai”; and

(f)  He went to Ma On Shan looking for a friend but he got lost.

8.  The estimated total market value of the cocaine and ketamine seized in this case is HK$5,587.76.

9.  At the material times the defendant:

(a)  had in his possession a dangerous drug, namely, 0.69 grammes of methamphetamine hydrochloride; and

(b)  unlawfully trafficked in dangerous drugs, namely 1.27 grammes of cocaine and 7.57 grammes of ketamine.

Mitigation

10.  The defendant is 37 years of age and is single. He is locally born and received education up to form 1. He lives with his parents in a public housing unit. He used to work as a lorry driver but has been unemployed since June 2021 due to the pandemic. He has a total of 6 previous convictions and 5 of them are not related to dangerous drug. The only drug-related conviction is a conviction of trafficking in dangerous drugs in 2014 in which he was sentenced to 44 months’ imprisonment.

11.  In mitigation, defence submitted that the defendant is remorseful now. At the material time he was unemployed and he committed the offence for financial reason. He has been remanded after his arrest and he is no longer a drug dependent. He fully understands the seriousness of the offence and asks the court for leniency.

Sentencing consideration

12.  For Charge 1, the court has considered the case of HKSAR v Mok Cho Tik [2001] HKEC 134. As the ice involved is of small quantity, the court is of the view that a starting point of 9 months’ imprisonment is appropriate.

13.  For trafficking in cocaine and ketamine, the Court of Appeal has laid down clear sentencing guidelines. According to R v Lau Tak Ming [1991] 2 HKLR 370 and Attorney General v Rojas [1994] 1 HKC 342, for trafficking up to 10 grammes of cocaine, the sentence is 2 to 5 years’ imprisonment. On the other hand, according to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, for trafficking over 1 gramme to 10 grammes of ketamine, the sentence is 2 to 4 years’ imprisonment.

14.  As charge 2 is concerned with two different types of dangerous drugs with different sentencing guidelines, the court will follow the methodology as set out in HKSAR v Islam SM Majharul [2020] 3 HKLRD 146. Considered all the circumstances, the court will adopt the combined approach.

15.  First of all, on a pure mathematical calculation, the sentence for 1.27 grammes of cocaine should be about 28 months’ imprisonment. For 7.57 grammes of ketamine the sentence should be about 42 months’ imprisonment.

16.  Cocaine is the more potent drug as compared with ketamine. However, as the amount of ketamine in this case is much larger than cocaine and will therefore attract a much higher starting point, it is more appropriate to use ketamine as the base drug in this case.

17.  What follows is to examine the results of the absurdity test, the conversion test and the ratio test to arrive at a reasonable and realistic starting point. The results of the absurdity test are 55 months if all the drugs are cocaine and 44 months if the drugs are all ketamine. The conversion test based on the cocaine sentencing guidelines is 46 months, and on the ketamine sentencing guidelines is 49 months. The result of ratio test is 46 months.

18.  Considered all of the above, to arrive at a combined starting point, the court will increase the starting point for ketamine i.e. 42 months by 6 months to 48 months’ imprisonment.

19.  The defendant pleaded guilty to both charges at the earliest opportunity and is entitled to full one-third discount. As a result, the sentences are these:

(a)  Charge 1: 6 months’ imprisonment

(b)  Charge 2: 32 months’ imprisonment

20.  Lastly, the court has to consider the totality of the sentence. Considered all the circumstances, the court is of the view that 48 months is sufficient to reflect the overall criminality of the defendant in this case and after one-third discount for the guilty pleas the sentence should be 32 months. As a result, the court orders that the sentences of charges 1 and 2 to be served wholly concurrently. The total sentence is 32 months’ imprisonment.