HKSAR v. PAOSIRI KA LOK AND ANOTHER

DCCC 835/2022

[2023] HKDC 1844

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 835 OF 2022

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REASONS FOR SENTENCE

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1.  At around 0150 hours on 9 January 2022, the police’s roadblock at Dundas Street intercepted a private car driven by Man Dik Chun (D2 in this case). At the time, D1 (Paosiri Ka Lok)  was sitting on the front passenger seat.

2.  The defendants’ manner aroused the suspicion of the police officers, who carried out a search on the defendants and the car.  On the person of D1, the police found a folded banknote containing traces of a powder containing cocaine.  Nothing was found on the person of D2. 

3.  Upon subsequent search of the car, the police found a quantity of dangerous drugs in the sealed space of the armrest of the door next to the front passenger seat.  They consisted of 101 bags of substance, of which 14.9 grammes were cocaine. 

4.  In addition, the police found 20 bags of substance containing a total of 6.66 grammes of ketamine.  The police also seized two mobile phones and also $29,986 cash. 

5.  Both defendants were arrested for trafficking in dangerous drugs.  Under causetion, D2 blamed it on D1 for the drugs as he knew nothing about it.  At the time, D1 had two mobile phones and cash of $9,211 on him. 

6.  The total street value was estimated to be around $31,490. 

7.  Both defendants had a clear record.  The car was registered in the name of D2.  On the basis of the above facts, D1 was charged with possession of dangerous drugs whereas D2 was charged with trafficking in dangerous drugs. There were convicted upon their pleas of guilty and admissions of facts. 

8.  In the case of D1, I have been informed that he was working as a construction worker and after his arrest, he was held in custody until October of the same year meaning that he had been in custody for nine months. 

9.  Normally for sentencing the offence of possession of dangerous drugs, this court will have to call for reports about his background and also from the commissioner of the Correctional Services in order to assess his eligibility for the mandatory detoxification programme provided by the Correctional Services Department. 

10.  I note that in this case the defendant was at the time 20 years of age and the drugs found on him was of a minimal quantity.  I will not criticise the prosecution for first suspecting him trafficking in dangerous drugs, as on the facts available I would harbour the same kind of suspicion myself. 

11.  However, it is only appropriate to sentence him on the offence of which he was convicted.  In this case, he had been in custody for nine months which would normally be equivalent to the time required for him to be detained in the Correctional Services for a full programme of detoxification. 

12.  I also consider that normally, possession of dangerous drugs would warrant a term of imprisonment of 3 to 12 months.  Considering the matter as a whole and in fairness to the defendant, it is not justified to further detain him. 

13.  D1 is therefore sentenced to 4 months’ imprisonment, suspended for 3 years.  If means that he is free to go, but is warned that if he commits further offences of a similar nature in the coming three years, he will have to serve these 4 months. 

14.  In the case of D2, the offence is a more serious.  The Court of Appeal had numerous opportunities to set out and confirm the sentencing guidelines. 

15.  The defence counsel has helpfully set out the sentencing guidelines and also for sentencing in a situation involving more than one kind of dangerous drugs.  The prosecution took no issue as to accuracy of such reckoning. 

16.  Briefly put, for the offence of trafficking in 14.9 grammes of cocaine, the normal sentence should be 64 months and for trafficking in 6.66 grammes of ketamine, the normal sentence should be 39 months.  Technically these are two separate offences but it would be too heavy-handed to add the two set of imprisonment together as a total term of imprisonment. 

17.  The Court of Appeal had also set out, various tests to consider the proper sentence in the case of trafficking in mixed drugs.  The first test is the “absurdity test”, ie to consider the whole quantity of drugs involved to be of the most serious kind, and that would come up to a term of imprisonment for 70 months. 

18.  In the conversion test, the court has a discretion of either considering all the drugs were cocaine or ketamine, that would come up respectively to a total sentence of either 69 months or 67 months. 

19.  In the ratio test, the court will consider the percentages of the drugs and the respective sentence that would come up is 65 months. 

20.  I have considered the total possible sentence and also the result using the three different tests.  I also take into consideration of the fact that there had been 101 bags of cocaine and 20 bags of ketamine.  I think that is a matter which renders the offence graver than normal.  I therefore adopt a term of imprisonment of 69 months.

Mitigation

21.  The prosecution has set out some background information and the defence has also set out some mitigating factor put forward.  I consider that the defendant’s clear record is not a valid mitigating factor.  He was aged 39 when the offence was committed.  He had been skipping from one job to another throughout the years.  He also claimed that by reasons of the pandemic, he had been unemployed for a while.  He had married twice. 

22.  I did not consider those as valid factors in exercising additional leniency for his benefit.  The only valid mitigating factor is the fact that he pleaded guilty, in accordance to the directions of the Court of Appeal, I reduce his sentence to 46 months to take effect immediately.