HKSAR v. LUO XUEJIAN

DCCC 131/2022

[2022] HKDC 879

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 131 OF 2022

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REASONS FOR SENTENCE

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Introduction

1.  The defendant (D)  pleaded guilty to 2 counts of Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars of Offence for Charge 1 stated that on 10 November 2021, at outside Ground Floor, Nos 11-21 Yen Chow Street, Sham Shui Po, Kowloon, he unlawfully trafficked in a dangerous drug, namely 6.03 grammes of a solid containing 5.05 grammes of cocaine, while Charge 2 stated that on the same day at Room D, Flat 15, 8^th Floor of the same building he unlawfully trafficked 16.31 grammes of a solid containing 14.16 grammes of ketamine and 9.16 grammes of a solid containing 7.48 grammes of cocaine.

Facts of Case

2.  The Summary of Facts admitted by D indicated that at around 4:08 pm on the date and location as particularized in Charge 1 D was stopped and searched by the police whereupon a transparent re-sealable plastic bag wrapped in tissue paper containing 40 plastic bags with the dangerous drug as particularized in that Charge, ie, a total of 6.03 grammes of a solid containing 5.05 grammes of cocaine, was found in the clutch bag D was carrying.

3.  D was arrested and under caution, he said he only wanted to make quick money.  He further said that there were more drugs at his home and his family members were not involved in the matter.

4.  D was then escorted by the police to his residence, which was in the same building as particularized in Charge 2.  His mother was inside the flat.  Upon searching, the following items were found inside the pillowcase on D’s bed:-

(i)  1 re-sealable bag containing 5 re-sealable plastic bags containing a solid containing 3.31grammes of a solid containing 2.86 grammes of ketamine;

(ii)  1 re-sealable bag containing 20 plastic bags containing a total of 13 grammes of a solid containing 11.3 grammes of ketamine;

(iii)  2 re-sealable plastic bags wrapped in tissue paper containing 20 and 40 re-sealable plastic bags respectively, containing a total of 9.16 grammes of a solid containing 7.48 grammes of cocaine; and 4 re-sealable plastic bags containing empty re-sealable plastic bags.

5.  An electronic scale was found next to the pillow.

6.  Under caution, D admitted all the seized items belonged to him and had nothing to do with his family members.  He wanted to earn money.

7.  In a subsequent video-recorded interview, D further admitted under caution that he was acting on the instruction of a person named “Chin Gor” to deal with the cocaine.  He collected 100 bags of the drug from a driver in Sham Shui Po a few days before arrest.  He was on his way to deliver 40 bags of them to another driver as instructed when he was arrested.  He would receive $30 for the delivery of each bag but had yet to receive any reward.  The ketamine was purchased by himself for own consumption when hanging out with friends in the bars. He used $7,000 to obtain them.  He would consume ketamine via his nose. The electronic scale was for separating the ketamine and the empty transparent plastic bags were bought by him for separating them.

8.  The estimated street value of the cocaine seized was $12,717.95 and $7,802 for the ketamine.

Background of D

9.  At the time of the offence, and up to the present time, D is 17 years old, born in the mainland on 3 October 2004.  He is the only child of his family.  He came to join his parents in Hong Kong in 2016.  According to the Training Centre Report, D has yet to attain permanent resident status in Hong Kong.  He is permitted to stay until 26 July 2023 only.  His father worked at a vegetable stall while his mother is a housewife.  His mother is suffering stage III cancer and is receiving chemotherapy after operation.  It is not clear whether she is suffering from ovarian or breast cancer but undoubtedly she is in very poor physical condition.  D received up to Form 1 education, repeating this level of education twice and then idled at home since a few months prior to the present offences.  D has a clear criminal record.  He claimed to be receiving $2,000 each month from his parents as pocket money.  However, according to the Background Report, his parents have been on CSSA for a few years and only gave him HK$300-400 per week as pocket money when he was attending school, and stopped altogether when he ceased schooling.

Mitigation

10.  In mitigation, Mr Yu acting for D realistically submitted that the most effective mitigating factor is D’s timely guilty plea.  He accepted that Charge 2 involved trafficking in 2 types of dangerous drugs, which is an aggravating factor.  He submitted that D has been co-operative with the police since arrest and shows remorse.  He also asked the Court to take into consideration that D is young with limited education and has a clear record.  He referred to D’s admission under caution that part of the ketamine in Charge 2 was for self-consumption and asked the court to consider exercising its discretion to give some discount on this factor.  He further sought concurrent sentences, partial or otherwise, for the 2 Charges on the totality principle.  Lastly, he invited the court to consider the possibility of rehabilitation and to call for a Detention Centre Report.

11.  After referring to the sentencing guidelines in R v Lau Tak Ming and Others[1] and AG v Pedro Nel Rojas[2] for cocaine and SJ v Hii Siew Cheng[3] for ketamine, Mr Yu invited the court to adopt the “combined approach” as indicated by the CA in HKSAR v Yip Wai Yin[4] in assessing the appropriate terms of imprisonment, and made meticulous calculations according to the 3 tests as suggested by the CA in HKSAR v Chan Yuk Leong[5].

Sentence

12.  D is only just 17 years old, both at the time of the offences and sentence, and has a clear criminal record.  However, as the offences involved are Exempted Offences under Schedule III of Cap 221, section 109A of the same Ordinance does not apply.  In AG v Kong Kin Man[6], the CA emphasized the serious nature of the offence of Trafficking in dangerous drugs so that the element of general deterrence is of paramount importance.  Age, whether youth or old age, carried little weight.  It is only in rare cases that detention in a training centre is appropriate on a conviction for such offences.  The same sentiment can be found in SJ v Ko Fei Tat[7] where the CA said that save in very rare cases a training centre order should not be imposed for trafficking in substantial quantities of dangerous drugs.

13.  In any event, I called for a Background Report and a Training Centre Report to further assist me in considering the appropriate sentence in the present case.  In the Training Centre Report, while confirming that D is physically fit for detention in a Training Centre and a place is available for him, the Commissioner of Correctional Services does not consider D to be suitable for detention in the aforesaid centre as D is a non-permanent resident with limit of stay till 26 July 2023 only.  This period cannot cover the whole programme at Training Centre including institutional disciplinary training and three-year statutory supervision.  Having considered the contents of these Reports and the facts of the present case, I am unable to say that there are any rare or exceptional circumstances warranting a departure from the principles enunciated by the CA mentioned above.  It is always difficult for the court to send young offenders to prison but it seems to me that there is no other option open in the present case.

14.  In the recent case of HKSAR v Herry Jane Yusuph[8], the CA stated that a discretionless starting point based upon quantity alone is not the correct approach, and provided a six-step approach in assessing the appropriate sentence in offences of this nature.

15.  In the context of the present case, I accept that D’s role is a mere keeper and courier, with no other aggravating feature.  Charge 1 involved 5.05 grammes of cocaine, which falls within the “up to 10 grammes” band attracting a sentence of 2 to 5 years.  I will adopt a starting point of 3 years and 6 months’ imprisonment for this Charge.  This is reduced by 1/3 for his timely guilty plea, resulting in a sentence of 2 years and 4 months.

16.  For Charge 2, the cocaine involved is 7.48 grammes, which falls withing the same band as in Charge 1, while the 14.16 grammes of ketamine falls withing the “10 to 50 grammes” band attracting a sentence of 4 to 6 years.  I will adopt the “combined approach”, using cocaine, which is the more potent drug, as the starting point, and adopt 4 years as the starting sentence for this drug.  I will enhance this by 1 year to take into account the ketamine and further enhanced it by 6 months for the aggravating factor of trafficking in 2 types of drugs at the same time.  The resulting starting point is 5 years and 6 months.

17.  D claimed that part of the ketamine involved in Charge 2 was for self-consumption when he hanged out with his friends in the bars.  He also told the Probation Officer that he started to take the drug when he repeated Form 1 education.  The street value of the ketamine was $7,802.  D claimed under caution that he used $7,000 to purchase them.  However, according to his mother, D was only given $300-400 per week as pocket money while receiving schooling and such pocket money had stopped prior to his arrest when he stopped attending school.  It is difficult to see how he could come up with the money to purchase the ketamine concerned.  Further, the 2 kinds of drugs were placed together and in similar packings when found inside his residence.  Also, a urine test for dangerous drugs was taken shortly after his arrest, and the result was negative.  Therefore, while he might be a consumer of ketamine himself at the time of the offences, I do not accept that any part of the drugs found at his residence was for his own consumption.

18.  In offences of such gravity, personal circumstances carry little weight.  However, that does not mean I cannot take them into account at all.  Bearing in mind the age of D, his hitherto clear record, his co-operation with the police upon arrest and the family background as revealed in the Background Report, I will reduce the starting point by 6 months.

19.  Therefore, for Charge 2, I will adopt 5 years as the notional starting point, reducing it by 1/3 for the timely guilty plea, with the resulting sentence being 3 years and 4 months.

20.  The total quantity of cocaine involved in the 2 Charges is 12.53 grammes. Obviously, they were from the same haul dealt with by D. This quantity of cocaine falls within the “10 to 50 grammes” band, attracting a sentence of 5 to 8 years.

21.  Having considered the totality principle, I order that 4 months of the sentence in Charge 1 be run consecutively to the sentence in Charge 2.  The final total sentence of 3 years and 8 months is equivalent to a total starting point of 5 years and 6 months, which, in my view, properly reflected the criminality involved in the present case.

22.  D is therefore sentenced as follows:-

Charge 1: 2 years and 4 months; 4 months to run consecutively to Charge 2

Charge 2: 3 years and 4 months

Total: 3 years and 8 months