HKSAR v. LAI KAI WING

DCCC 102/2020

[2020] HKDC 597

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 102 OF 2020

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of trafficking in 16.00 grammes of a solid containing 11.50 grammes of cocaine and 12.76 grammes of a solid containing 10.87 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.  In summary at around 2253 hours on 25 November last year the defendant was intercepted at the Customs Departure Hall of the Hong Kong Macau Ferry Terminal. 

3.  Upon search CO 1708 found a blue plastic glove tucked inside the defendant’s underpants.  Inside the glove was a total of one hundred and three plastic bags containing the cocaine and the ketamine.

4.  The defendant was also found in possession of a mobile phone; HK$1712 and a ferry ticket to Macau.

5.  The estimated street value of the cocaine was $16,800 and the ketamine was $7,030.76.

Mitigation

6.  In passing sentence, I have carefully considered the written and oral submissions of Ms Lee, including that due to ill health of his mother and father the defendant was the sole breadwinner working in a Japanese restaurant and that he committed the offence out of greed and to help pay the family expenses, including medical bills[2].

7.  I have read the mitigation letter written by the defendant in which he says he has reflected on his wrongdoing and asks for a lenient sentence.  I have read the letter written by the defendant’s mother, who has attended court today showing her support for her son.

8.  I have also read the letter written by the defendant’s class teachers when he studied in Form 3, who describe his participation in extra-curricular activities as outstanding including volunteer services in the community.  Three of the defendant’s former classmates have also come to court to show their support for the defendant.

9.  I take into account the defendant has a clear record. 

10.  I also take into account that the defendant is only 19 and that he committed the offence shortly before his nineteenth birthday.

11.  Section 109A of the Criminal Procedure Ordinance[3], provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  Whilst this provision does not apply to trafficking in a dangerous drug, which is an excepted offence, a court must exercise great care before committing a young offender to prison. 

12.  In Secretary for Justice v Chau Tsz Tim the Court of Appeal restated that only in very rare cases where there are exceptional circumstances will a Training Centre Order be appropriate for trafficking in substantial quantities of drugs[4].  I have not been asked to call for any reports before passing sentence.   After very careful consideration I am satisfied that this is not one of those very rare cases where a Training Centre Order would be appropriate. 

13.  Notwithstanding the defendant’s young age, I am satisfied there are no exceptional circumstances warranting departure from the guidelines.  I therefore decline to call for any reports before passing sentence.

Guidelines

14.  The courts have equated for sentencing purposes cocaine with heroin[5].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[6].  The court said that the sentence upon conviction after trial where the quantity of narcotic is between 10 and 50 grammes falls within the range of 5-8 years’ imprisonment. 

15.  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. 

16.  Adopting the “individual” approach to sentence based on quantity alone the starting point for trafficking in 11.50 grammes of cocaine would be just over 5 years and 1 months’ imprisonment and for trafficking in 10.87 grammes of ketamine would be just over 4 years’ imprisonment. 

17.  Applying what has been referred to as the “absurdity test” a starting point of 9 years and 1 months’ imprisonment is clearly excessive for if all the drugs were cocaine the starting point based on quantity alone would be just less than 6 years’ imprisonment. 

18.  I agree with Ms Lee that the “combined” approach to sentence is appropriate. Adopting a starting point of 5 years and 1 months’ imprisonment for trafficking in 11.50 grammes of cocaine, I enhance the starting point by 5 months to 5 years and 6 months’ imprisonment to reflect the fact that the defendant was also trafficking in ketamine. 

19.  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]. 

20.  Taking into account the defendant’s young age and that he has no previous convictions for dangerous drug offences, I adopt a slightly lower starting point of 5 years and 3 months’ imprisonment. 

International element

21.  The exportation of cocaine and ketamine adds an international element to the offence and is an aggravating feature of sentence. 

22.  In HKSAR v Chung Ping Kun the Court of Appeal held that as a broad guideline an enhancement of 6 months was appropriate for trafficking in up to 250 grammes of ice, heroin and cocaine[9].

23.  In HKSAR v Choi Chun Wo, the Court of Appeal stated:[10]

“However, clearly at the lower end of the scale, a sentencing court must ensure that the level of enhancement is just and proportionate in the circumstances of the case, bearing in mind that such enhancement must still be of sufficient length to act as a deterrent”.

24.  The court in HKSAR v Choi Chun Wo held that an enhancement of 3 months was appropriate for importing into Hong Kong 5.26 grammes of ice. 

25.  I am satisfied the starting point should be enhanced by 3 months to 5 years and 6 months’ imprisonment.

26.  Giving the defendant full credit for his plea of guilty reduces the sentence to 3 years and 8 months’ imprisonment.

Voluntary work

27.  I am satisfied some credit should be given for the defendant’s participation in voluntary work as particularised in the letter from his former school teachers.  In the circumstances I further reduce the sentence by 1 month to 3 years and 7 months’ imprisonment.   

28.  The defendant is convicted and sentenced to 3 years and 7 months’ imprisonment.