HKSAR v. CHAK WAI HO

DCCC 841/2019

[2021] HKDC 82

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 841 OF 2019

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REASONS FOR SENTENCE

1.  The defendant stands convicted after trial of one charge of possession of cocaine, contrary to section 8 of the Dangerous Drugs Ordinance[1] (charge 1); one charge of trafficking in cocaine, ketamine and fluorodeschloroketamine, contrary to section 4 of the Dangerous Drugs Ordinance (charge 2) and one charge of trafficking in fluorodeschloroketamine, contrary to section 4 of the Dangerous Drugs Ordinance (charge 3).

2.  Full particulars of the offences are set out in my reasons for verdict handed down today.  In summary on 24 February 2019 PC 9665, PC 7866 and WPC 19081 were patrolling on Wing Hong Street in Cheung Sha Wan when PC 9665 saw the defendant sitting in the driver’s seat of a black Audi, LP 4684, which had been sold to the defendant in January 2019.

3.  When PC 9665 saw the defendant take out a banknote from the compartment between the driver’s seat and the front passenger seat he gestured to his colleagues to interceptLP 4684.  PC 9665 and PC 7866 walked round the back of LP 4684 and approached the driver’s door.  PC 9665 asked the defendant to get out LP 4684 at which time he was still holding the folded banknote in his left hand.  PC 9665 seized the banknote inside which was 0.04 gramme of a solid containing cocaine. Under caution the defendant admitted that the cocaine was for his own consumption (charge 1).  

4.  In the compartment between the driver’s seat and the front passenger seat of LP 4684 PC 7866 found nineteen plastic bags containing a total of 7.86 grammes of a solid containing 7.48 grammes of cocaine; one plastic bag containing 0.79 gramme of a solid contining 0.68 gramme of ketamine and thirty-six plastic bags containing a total of 28.3 grammes of a solid containing 24.3 grammes of fluorodeschloroketamine (charge 2).

5.  In the storage compartment in front of the front passenger seat PC 7866 found four plastic bags containing a total of 53.2 grammes of a solid containing 41.6 grammes of fluorodeschloroketamine (charge 3).

6.  On the evidence I was satisfied the only inference to draw was that the defendant was in possession of the dangerous drugs found in LP 4684 knowing they were dangerous drugs and that the defendant possessed the dangerous drugs for the purpose of trafficking.

Mitigation

7.  In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Percy.

Charge 1 – possession of a dangerous drug

8.  Taking into account the quantity of cocaine is not quantified but would in any event be very small I am satisfied a sentence of 1 month imprisonment is appropriate[2].

Charges 2 & 3 – trafficking in dangerous drugs

Guidelines

Cocaine

9.  The courts have equated for sentencing purposes cocaine with heroin[3].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[4].  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment. 

Fluorodeschloroketamine

10.  There are no guidelines for fluorodeschloroketamine.  The prosecution has submitted the expert report of Dr Mak dated 10 June 2020 detailing the nature of fluorodeschloroketamine.  Dr Mak is of the opinion that the potency of fluorodeschloroketamine is similar to, or slightly higher than ketamine[5]. 

11.  In HKSAR v So Wan Cheung the High Court, having read a report prepared by Dr Mak, treated for sentence purpose fluorodeschloroketamine as equivalent to ketamine[6].  Mr Percy asks that the court also treats fluorodeschloroketamine as equivalent to ketamine.

12.  In Secretary for Justice v Hii Siew Cheng[7]the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years.

Charge 2

13.  On a purely arithmetical approach a starting point of just under 4 years and 3 months’ imprisonment is appropriate for trafficking in 7.48 grammes of cocaine and 4 years and 9 months’ imprisonment is appropriate for trafficking in 24.98 grammes of fluorodeschloroketamine and ketamine.

14.  Adopting the “individual” approach to sentence on charge 2 based on quantity alone the starting point would be 9 years’ imprisonment. 

15.  Applying what has been referred to as the “absurdity test” a starting point of 9 years is clearly excessive for if all the drugs were cocaine the starting point based on quantity alone would be 6 years and 8 months’ imprisonment. 

16.  The “combined” approach to sentence is appropriate. Adopting a starting point of 4 years and 3 months’ imprisonment for trafficking in 7.48 grammes of cocaine, I enhance the starting point by 1 year and 3 months to 5 years and 6 months’ imprisonment to reflect the fact that the defendant was also trafficking in fluorodeschloroketamine and ketamine. 

17.  Applying both the “conversion test” and the “ratio test”, I am satisfied the starting point would not be less than 5 years and 6 months’ imprisonment[8].

Charge 3

18.  I am satisfied a starting point of 5 years and 3 months’ imprisonment is appropriate for trafficking in 41.6 grammes of fluorodeschloroketamine.

Persistent offender

19.  The defendant has four convictions for possession of a dangerous drug and three convictions for trafficking in a dangerous drug in 2007, 2010 and 2015.  The defendant’s last appearance in court was in 2015 when he was sentenced to 4 years’ imprisonment for trafficking in a dangerous drug.

20.  I am satisfied the defendant is a persistent offender and enhance the starting points for the two trafficking charges by 3 months’ imprisonment to 5 years and 9 months’ imprisonment and 5 years and 6 months’ imprisonment respectively.

Totality

21.  I accept that all the dangerous drugs found in LP 4684 form part of the same batch of dangerous drugs.   I am satisfied that the total sentence must reflect the total quantity of dangerous drugs found in LP 4684 and that the defendant was trafficking in two different dangerous drugs. 

22.  I am satisfied that a total sentence of 6 years and 6 months imprisonment properly reflects the defendant’s overall criminal culpability on the two trafficking charges[9].   I am satisfied the possession of a small quantity of cocaine does not add to the culpability of the defendant and that a concurrent sentence is appropriate for charge 1.

Sentence

23.  The defendant is convicted and sentenced as follows:      

Charge 2 – 5 years and 9 months’ imprisonment;

Charge 3 – 5 years and 6 months’ imprisonment with 9 months consecutive and 4 years and 9 months concurrent to charge 2; and

Charge 1 – 1 month imprisonment concurrent to charges 2 & 3.

The total sentence to be served by the defendant is 6 years and 6 months’ imprisonment.