HKSAR v. CHU KAI LEUNG

DCCC 844/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 844 OF 2014

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REASONS FOR SENTENCE

Procedural Matters

This case originates from a series of "controlled buy" dangerous drugs transactions, which all took place in a pub. All transactions involved cocaine, except Charge 14, which involved cocaine and ketamine.

2. Each defendant faces multiple charges of "drug trafficking".

3. D1 pleaded guilty to 2 "trafficking" offences (Charges 9 and 11).  D2 pleaded guilty to 13 "trafficking" offences (Charges 1 to 11, 13 and 14).  D3 pleaded guilty to 4 "trafficking" offences (Charges 2, 5, 8 and 10).  D4 pleaded guilty to 2 "trafficking" offences (Charges 9 and 12).

4. Upon application by the prosecution, I ordered Charge 9 against D3; and Charge 3 against D4 be left in the court file; not to be proceeded against the respective defendants without leave of court.

Summary of Facts

The Bar

5. Between February and April 2014, 5 decoy police officers (PWs 1 to 5) patronized an unlicensed and unnamed bar situated at 15th Floor, Lamma Tower, Nos.12-12A Hau Fook Street, Tsim Sha Tsui ("the Bar") on numerous occasions.

Charge 1 (against D2)

6. About 1:50 am on 6 February 2014, PWs 2 and 4 arrived at the Bar.  About 2:10 am, D2 quietly asked PW4 if he wanted to enjoy "coke" at $400 per "drop".  PW4 bought 1 "drop" at $400 with marked money.  D2 gave 1 resealable plastic bag (which contained 0.21 gramme of a solid containing 0.15 gramme of cocaine) to PW4.

Charge 2 (against D2 and D3)

7. About 2:05 am on 11 February 2014, PWs 3 to 5 arrived at the Bar.  About 2:10 am, D3 asked PW5 if she wanted to enjoy "coke" at $400 per "drop".  PW5 ordered 2 drops and D3 relayed the order to the bar counter.  D2 passed 2 resealable plastic bags to PW5 and she paid D2 $800 with marked money.

8. In order not to arouse suspicion, PW5 poured the powder in one of the resealable plastic bags onto a $20 banknote and left the empty plastic bag on the table.  The other plastic bag was later found to contain 0.24 gramme of a solid containing 0.21 gramme of cocaine; and the $20 banknote, 0.16 gramme of a powder containing 0.12 gramme of cocaine.

Charge 3 (against D2)

9. About 2:05 am on 14 February 2014, PWs 4 and 5 arrived at the Bar.  A few minutes later, D4 asked PW4 if he wanted to enjoy "coke" at $400 per "drop".   PW4 ordered 1 "drop" and D4 relayed the order to D2.  D2 then passed 1 resealable plastic bag and 2 cigarettes to PW4 and he paid D2 $400 with marked money.

10. In order not to arouse suspicion, PW4 poured the powder in the resealable plastic bag onto a piece of tissue paper and left the empty plastic bag on the table.  The paper tissue was later found to contain 0.25 gramme of a solid containing 0.22 gramme of cocaine.

Charges 4 (against D2) and 5 (against D2 and D3)

11. About 1:55 am on 20 February 2014, PWs 1 to 4 arrived at the Bar.  A few minutes later, D2 asked PW4 if he wanted some "coke" at $400 per "drop".  PW4 bought 2 "drops" from D2 at $800 with marked money.  D2 gave 4 cigarettes and 2 resealable plastic bags (which contained a total of 0.31 gramme of a solid containing 0.20 gramme of cocaine) to PW4.

12. About 2:00 am, D1 introduced himself to PW1 as "Joe", the person-in-charge of the Bar and gave his mobile phone number to PW1.

13. About 2:30 am, D3 asked PW2 if he wanted 2 more "drops" of coke.  PW2 agreed.  Later, PW2 paid D2 $800 with marked money, and was given 4 cigarettes and 2 resealable plastic bags (which contained a total of 0.37 gramme of a solid containing 0.24 gramme of cocaine).

Charge 6 (against D2)

14. About 2:05 am on 21 February 2014, PWs 1 to 3 arrived at the Bar.  A few minutes later, D2 asked PW1 if he wanted 2 "drops" of "coke".  PW1 agreed.  D2 took out 2 resealable plastic bags and 4 cigarettes from the drawer at the bar counter and passed them to PW1.  PW1 then paid D2 $800 with marked money.  PW1 pretended to consume the drug by grinding the powder and putting it into the 4 cigarettes.  The 4 cigarettes were later found to contain a total of 0.20 gramme of a powder containing cocaine.

15. About 2:50 am, D2 asked PW3 if he would like more "coke".  PW3 bought 2 "drops" from D2 at $800 with marked money.  D2 then passed 2 resealable plastic bags and 4 cigarettes to PW3.  PW3 pretended to consume the drug by grinding the powder and putting it into the 4 cigarettes.  The 4 cigarettes were later found to contain a total of 0.23 gramme of a powder containing cocaine.

Charge 7 (against D2)

16. About 1:55 am on 26 February 2014, PWs 2, 4 and 5 arrived at the Bar.  A few minutes later, D2 asked PW5 if she wanted some "coke".  PW5 bought 1 "drop" at $400 with marked money.  D2 passed 1 resealable plastic bag (which contained 0.23 gramme of a solid containing 0.15 gramme of cocaine) to PW5.

Charges 8 (against D2 and D3) and 9 (against D1, D2 and D4)

17. About 2:05 am on 3 March 2014, PWs 2 and 3 arrived at the Bar.  D3 asked PW3 if he wanted "coke".  PW3 ordered 2 "drops" and paid D2 $800 with marked money.  PW3 received 4 cigarettes and 2 resealable plastic bags (which contained a total of 0.41 gramme of a solid containing 0.29 gramme of cocaine).

18. About 2:35 am, PW1 arrived at the Bar to join PWs 2 and 3.

19. About 2:55 am, PW1 saw D4 cutting a piece of white solid in the size of a golf ball, weighing the cut pieces on an electronic scale and packing them into resealable plastic bags.  D1 asked PW1 if he wanted to try some "coke".  PW1 asked for 1 "drop".  D1 then asked D3 to give 1 "drop" to PW1.  D3 took PW1 to the bar counter and asked D2 for 1 "drop".  D4 cut the white solid and passed the cut pieces to D2.  D2 weighed and packed them into a resealable plastic bag and gave it to PW1. PW1 paid D2 $400 with marked money.

20. PW1 pretended to consume the drug by grinding the powder on a banknote.  The banknote was later found to contain a total of 0.09 gramme of a powder containing cocaine.

Charges 10 (against D2 and D3) and 11 (against D1 and D2)

21. About 6:00 am on 9 March 2014, PWs 1 to 3 arrived at the Bar.  A few minutes later, D3 asked PW3 if he wanted 2 "drops" of "coke". PW3 agreed.  D3 relayed the order to D2, who then took out 2 resealable plastic bags from a waist bag placed inside the drawer at the bar counter.  PW3 paid D2 $800 with marked money.  The 2 resealable plastic bags were later found to contain a total of 0.33 gramme of a solid containing 0.22 gramme of cocaine.

22. About 6:30 am, D1 asked PW1 if he wanted to try some "coke".  PW1 ordered 2 "drops".  D1 took PW1 to D2, who took out 2 resealable plastic bags from a waist bag.  PW1 paid D2 $800 with marked money.  The 2 resealable plastic bags were later found to contain a total of 0.35 gramme of a solid containing 0.23 gramme of cocaine. 

Charge 12 (against D4)

23. About 2:10 am on 2 April 2014, PWs 3 and 4 arrived at the Bar.  D4 asked PW3 if he wanted a "drop" of "coke".  PW3 bought 2 "drops" and paid D4 $800 with marked money.  D4 then passed 2 resealable plastic bags (which contained a total of 0.30 gramme of a solid containing 0.13 gramme of cocaine) to PW3.

Charge 13 (against D2)

24. About 2:20 am on 9 April 2014, PWs 3 and 4 arrived at the Bar.  D2 asked PW3 if he wanted a "drop" of "coke".  PW3 bought 2 "drops" and paid D2 $800 with marked money.  D2 then took out a waist bag from the drawer at the bar counter ("the Drawer") and passed 2 resealable plastic bags (which contained a total of 0.43 gramme of a solid containing 0.32 gramme of cocaine) to PW3.

Charge 14 (against D2)

25. About 2:50 am on 9 April 2014, the Police raided the Bar.  PWs 3 and 4 and the raiding team revealed their police identity.  PW3 guarded the Drawer in which the waist bag containing resealable plastic bags of powder was placed.

26. About 7:00 am, PC 7960 (PW7) seized 6 keys from D2:  1 could open the main door of the Bar and 2 could open the Drawer.  In the Drawer, PW7 found the following items :-

(i) 51 paper packets which contained a total of 18.96 grammes of a powder containing 14.66 grammes of ketamine;

(ii) 137 plastic bags which contained a total of 31.13 grammes of a solid containing 17.22 grammes of cocaine;

(iii) 1 plastic bag which contained 14.73 grammes of a powder containing 8.46 grammes of ketamine;

(iv) 7 x $100 marked banknotes paid to D2 by PW3 that evening;

(v) 1 black waist bag; and

(vi) cash in the sum of $2,720.

There were also 8 pieces of cut black straw and a pile of cut paper on the cashier table.

Post-arrest Matters

27. D1 to D4 were positively identified by PWs 1 to 5 at the scene.  D1, D3 and D4 remained silent under caution.  They also refused to answer any questions in their respective video recorded interviews.

28. Under caution, D2 admitted Charge 1 and that the "coke" in the Drawer belonged to him.  In his 1^stvideo recorded interview, D2 admitted that all the drugs seized from the Drawer (namely ketamine and cocaine) belonged to him.  He would sell the cocaine to customers of the Bar at $400 per "pellet".  The ketamine would be given for free to customers who purchase cocaine.  He would earn $200 to $300 for every "pellet" of cocaine sold.  He is the person-in-charge of the Bar.  He took over its operation for 3 months.  He kept no record for the sale of drugs.  He would keep the cash received from selling drugs in the Drawer.

Mitigation

D1

29. He is 32 and single.  He has 2 conviction records, none of which is related to drugs.  D1's counsel Ms. WONG submitted that the 2 offences committed by D1 took place less than 7 days apart and he sold drugs to the same decoy officer.

30. Regarding paragraph 12 of the Summary of Facts, Ms. WONG elaborated that according to PW1's witness statement, D1 uttered those words in the context of telling PW1 that if he could not get into the Bar, call D1.  D1 was not the person-in-charge but a bartender earning $500 per day.  He worked in the Bar only for 3 months.  When the operation turned overt in April, D1 had already left his employment with the Bar.

31. Ms. WONG further submitted that D1 foolishly believed that selling drugs to customers would allow him to keep his job.  In fact, he made no extra earnings by doing so.  He offered to sell drugs to PW1 only instead of all undercover officers. The quantity of cocaine involved in each charge was very small.

D2

32. He is 20 and single.  He has 5 conviction records, none of which is related to drugs. D2's lawyer Mr. YIU informed me that D2 came to Hong Kong from the mainland with his grandparents at the age of 2.  The whereabouts of his parents are unknown and D2 has no contact with his parents.  Mr. YIU submitted that D2 has worked in the Bar for 3 months only; he was just an employee earning $15,000 per month.  D2 co-operated with the Police after arrest and made frank admissions.

D3

33. He just turned 19 and has a clear record.  He resides with his parents and elder brother. D3's counsel Mr. SO submitted that D3 wanted to earn some extra money; he was then introduced by a friend to work at the Bar as a part-time waiter earning $400 per day.  After D3 started working at the Bar, someone persuaded him to sell drugs.  He committed the offences out of greediness since he could earn $100 to $200 per sale.  Mr. SO stressed that D3 has worked at the Bar for only 2 months.  Furthermore, he only sold drugs at the same place to the same group of decoy officers.

D4

34. He is 21 and has a clear record.  He resides with his parents and siblings.  D4's counsel Mr. SO informed me that D4 is a warehouse supervisor earning $12,000 per month.  He contributes $4,000 to his family each month.  Mr. SO submitted that D4 wanted to earn some extra money.  Through the introduction of a friend, he started to work at the Bar as a part-time waiter.  He has worked there for about 6 months.

Sentence

35. A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders.

36. The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370) and ketamine (see  SJ v HII Siew Cheng [2009] 1 HKLRD 1).  For up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years' imprisonment.  For 10 to 50 grammes of cocaine, the sentence ranges from 5 to 8 years' imprisonment.  For 10 to 50 grammes of ketamine, the sentence ranges from 4 to 6 years' imprisonment.

37. I have also borne in mind the comments made by McWalters J (as he then was) in HKSAR v PAU King Kong [2013] 3 HKLRD 676  on sentencing a drug trafficker selling different types of drug to an undercover police officer on multiple occasions.[1] 

D1 (Charges 9 and 11)

38. In Charges 9 and 11, D1 trafficked in 0.09 gramme of a powder containing cocaine and 0.23 gramme of cocaine respectively.  For such small quantities, a starting point slightly lower than 2 years' imprisonment is appropriate.  I adopt 18 months as the starting point for Charge 9; and 21 months for Charge 11.  A one-third discount is given for the guilty plea, reducing the sentence to 12 months and 14 months respectively.  Apart from this, I see no other mitigating factors which warrant any further discount.  I sentence D1 to 12 months' and 14 months' imprisonment respectively for Charges 9 and 11.

39. Having considered the totality principle, I order:  2 months in Charge 9 to run consecutive to Charge 11; arriving at a total prison term of 16 months for both charges.

D2 (Charges 1 to 11, 13 and 14)

40. In Charges 1 to 5, 7, 8, 10, 11 and 13, D2 trafficked in 0.15 gramme, 0.33 gramme, 0.22 gramme, 0.20 gramme, 0.24 gramme, 0.15 gramme, 0.29 gramme, 0.22 gramme, 0.23 gramme and 0.32 gramme of cocaine respectively.  I adopt 21 months' imprisonment as the starting point for each charge.  A one-third discount is given for the guilty plea, reducing the sentence to 14 months.  I see no other mitigating factors which warrant any further discount.  I sentence D2 to 14 months' imprisonment each for these 10 charges.

41. In Charges 6 and 9, D2 trafficked in 0.43 gramme and 0.09 gramme of a powder containing cocaine respectively. I adopt 18 months' imprisonment as the starting point for each charge.  A one-third discount is given for the guilty plea, reducing the sentence to 12 months.  I sentence D2 to 12 months' imprisonment each for these 2 charges.

42. In Charge 14, D2 trafficked in 17.22 gramme of cocaine and 23.12 gramme of ketamine.  For 17.22 grammes of cocaine, the appropriate starting point is 5 years.  For 23.12 grammes of ketamine, the appropriate starting point is 4.5 years.  To determine the proper starting point for this charge, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v YIP Wai-yin & another CACC 80/2003 and HKSAR v CHENG Yat-ming CACC 455/2006.  I consider that the "combined approach" would yield a realistic and fair sentence.

43. In HKSAR v KO Ka Hing [2009] 4 HKLRD 856, the Court of Appeal held that where the "combined approach" is taken, the court will rely on common sense in determining which type of the dangerous drugs is to be regarded as the more serious, hence forming the basis of the starting point.[2]

44. Since cocaine is more potent than ketamine, the quantity of cocaine shall form the basis of the starting point.  I adopt a starting point of 5 years' imprisonment and adjust it upward by 12 months for the ketamine, arriving at 6 years.  A one-third discount is given for the guilty plea, reducing the sentence to 4 years.  I sentence D2 to 4 years' imprisonment for Charge 14.

45. Having considered the totality principle, I order: (i) the sentences in Charges 1 to 7 to run concurrently, with 6 months consecutive to Charge 14; and (ii) the sentences in Charges 8 to 11 and 13 to run concurrently, with 6 months consecutive to Charges 14 and 1 to 7; arriving at a total prison term of 5 years for all 13 charges.

D3 (Charges 2, 5, 8 and 10)

46. In Charges 2, 5, 8 and 10, D3 trafficked in 0.33 gramme, 0.24 gramme, 0.29 gramme and 0.22 gramme of cocaine respectively.  I adopt 21 months' imprisonment as the starting point for each charge.  A one-third discount is given for the guilty plea, reducing the sentence to 14 months.  I see no other mitigating factors which warrant any further discount.  I sentence D3 to 14 months' imprisonment each for these 4 charges.

47. Having considered the totality principle, I order:  (i) 2 months in Charge 5 to run consecutive to Charge 2; (ii) 2 months in Charge 8 to run consecutive to Charges 2 and 5; and (iii) 2 months in Charge 10 to run consecutive to Charges 2, 5 and 8; arriving at a total prison term of 20 months for all 4 charges.

D4 (Charges 9 and 12)

48. In Charges 9 and 12, D4 trafficked in 0.09 gramme of a powder containing cocaine and 0.13 gramme of cocaine respectively.  I adopt 18 months' imprisonment as the starting point for Charge 9; and 21 months for Charge 12.  A one-third discount is given for the guilty plea, reducing the sentence to 12 months and 14 months respectively.  I see no other mitigating factors which warrant any further discount.  I sentence D4 to 12 months' and 14 months' imprisonment respectively for Charges 9 and 12.

49. Having considered the totality principle, I order:  2 months in Charge 9 to run consecutive to Charge 12; arriving at a total prison term of 16 months for both charges.

[1] See paras.29 to 40 on pp.684 to 687.

[2] See para.3(c) at p.859.  In HKSAR v WAN Lau Mei CACC 389/2013, McWalters J (as he then was) held at para.36 "Under the combined approach it is necessary for the judge to identify the drug sentencing tariff that he will employ.  This is done by identifying the drug which makes up the bulk of the narcotic seized or where the drugs are of significantly differing potency the judge may use the tariff of the more potent drug if it makes up a significant proportion of the total quantity of drugs being trafficked."