HKSAR v. SU WAI HO

HCCC 391/2017
[2018] HKCFI 395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 391 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The police executed a search warrant at a flat when the defendant was arrested inside a room there for having with him eight packets of dangerous drugs in a drawer under the bed. There were other packaging paraphernalia including two electronic weighing scales and 15 empty transparent resealable plastic bags. He admitted that he kept the drugs there for another person and awaited instructions to deliver them to others. He also said that his mother and girlfriend had nothing to do with this.

Upon analysis, they were found to be 5,954 grammes of a solid containing 4,054 grammes of ketamine and 51(56?) grammes of a crystalline solid containing 51.1 grammes of methamphetamine hydrochloride.

By way of mitigation, I am told that the defendant is aged 24. He is single. He has no criminal record in Hong Kong. It is advanced on his behalf that he committed the present offence for financial reasons and was driven into the offence as a drugs mule by some undesirable peers.

In sentencing the defendant, I have taken into account the nature of the offence, the different kind of drugs involved and the sentencing authorities and tariffs as well as mitigation advanced by counsel and those contained in the defendant’s handwritten letter. According to the guideline laid down in the case of Hii Siew Cheng, trafficking in over 1 kilogramme of ketamine, a starting point would be 14 years upwards and the case of Sin Chung Kin had further supplemented Hii’s case to the effect that for trafficking in 2 kilogrammes and 3 kilogrammes of ketamine, starting points should be no less than imprisonment for 18 years and 20 years respectively. That case actually involved trafficking in 5.12 kilogrammes of ketamine and the Court of Appeal approved of the 22 years starting point adopted by the Court of First Instance.

There are two types of drugs involved here: about 4 kilogrammes of ketamine and 51.1 grammes of ‘Ice’. Looking at them individually, the ketamine falls into the less than 22 years bracket and individually for the ‘Ice’, it falls within the 10 to 70 grammes, 7 to 11 years range.

I then apply the various tests in Chan Yuk Leong CACC 318/2013 to countercheck. First is the absurdity test. Assuming the entire quantity of drugs which is 4,105.1 grammes are all ‘Ice’, if I apply Abdallah, the starting point would be around 26 years whilst if the entire quantity are all ketamine, the starting point would still be below the 22 years starting point in Sin Chung Kin.

And the second test is the conversion test. Given the starting point for ‘Ice’ within the tariff of Tam Yi Chun would attract a starting point of around 117 months which after conversion would be equivalent to around 330 grammes of ketamine and adding the 330 grammes to the 4,054 grammes of ketamine, making a total of 4,384 grammes of quantity, still attracts a starting point of below 22 years.

The third test is the ratio test. Allowing the ratio of the weight of the two different kinds of drugs and the related ranges of sentence but also taking into consideration any aggravating factor that the two different kinds of drugs were trafficked in, the ratio would be ketamine to ‘Ice’ around 98 per cent to 2 per cent. So after applying the ratio test, I come to the view that assuming there is this 98 per cent to 2 per cent ratio, then the sentence would reach as a starting point at 20.76 years’ starting point. So it would seem that all tests give a result of a starting point of less than the 22 years in Sin Chung Kin.

I therefore adopt 21 years as a starting point. Having pleaded guilty at the committal stage, he is entitled to a one-third discount.

He is sentenced to 14 years’ imprisonment.