HKSAR v. Lin Haoran

DCCC 35/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 35 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134.

2.The particulars are that on 10 November 2015, the defendant unlawfully trafficked two types of dangerous drugs, namely 75.3 grammes of a powder containing 44.06 grammes of ketamine, and 1.31 grammes of a solid containing 1.2 grammes of cocaine.

3.The facts of this case are very straightforward. The defendant was stopped and searched after he alighted from a vehicle in Tai Wai, Shatin.  The police officer thought the defendant was looking suspicious, and his suspicions were very accurate, because upon a search, all the dangerous drugs were found in a plastic bag in the defendant’s trouser pocket.

4.Under caution at the scene, the defendant admitted that he was not selling the ketamine or cocaine, but only delivering it.  In a subsequent video-recorded interview, again under caution, he gave further details to the police.  He had picked up the drugs in Mong Kok that evening and was delivering the drugs for $1,000.

5.All the drugs were valued at about $11,300.

6.There was a house search, where nothing suspicious was found.

7.The defendant’s best mitigation is his plea of guilty today.

8.The defendant is 25 years old.  He came to Hong Kong from mainland China when he was 15 years old.  He only got married last year, and his baby was born not long after and is now 11 months old.

9.The defendant is a man with a clear record until today.  He took a very foolish risk for $1,000.  The fact that the defendant was only delivering the drugs does not make his role less serious.  Acting as a drug courier is acting as a cog in the wheel that masterminds cannot do without.

10.Now the defendant is remorseful and realises how much he stood to lose.  He has let his parents, wife and young son down.  The defendant accepts responsibility for his actions.  I have heard at the time of the offence he was unemployed and hoping to earn some money to support his family.  He has said his education level is not particularly high, which makes finding a well‑paid job difficult.  I suggest that while the defendant is serving his sentence for this offence, he learn a trade or engage in further education to prepare him for his release, when he can make it up to his family.

11.When sentencing a defendant in a drug‑trafficking case where there is more than one type of drug involved, there are two approaches to sentencing.  It is the individual approach or the combined approach, as explained and set out in the authority of HKSAR v Yip Wai Yin [2004] 3 HKC 367.

12.The prosecution has assisted me with an authority, HKSAR v Wong Kin Kau [2010] 4 HKC 443.  That case used the combined approach, and refers to the conversion test that tests the appropriateness of the overall starting point.  The combined approach is used by calculating what would be the applicable starting point for the more or the most potent dangerous drug.

13.Here, in this case, it is the ketamine.  Then the court should adjust that starting point upwards to take into account, in this case, the cocaine.

14.Mr Kam, for the defendant, has also calculated and suggested an appropriate starting point using the combined approach.  He uses the ratio test as supported by the authority of HKSAR v Yau Ka Ming CACC 144/20113.  He suggests the appropriate starting point should be 5½ years.

15.Mathematically speaking, the starting point calculated by the ratio test should be a little higher than that calculated by Mr Kam.  That test and other tests have been discussed in the authority of HKSAR v Chan Yuk Leung CACC 318/2013.  That and other tests discuss the appropriateness of the overall starting point.

16.In this case, if I take into account only the ketamine, according to the authority of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD, the starting point should be, mathematically speaking, 5 years and 9 months.  That authority says where between 10 to 50 grammes of ketamine is trafficked, a 4 to 6 year term of imprisonment is appropriate.

17.For trafficking cocaine, according to the authority of R v Lau Tak Ming [1990] 2 HKLR 370, where between 0 to 10 grammes of cocaine is trafficked, an appropriate starting point would be between 2 to 5 years’ imprisonment.

18.If this case only referred to this cocaine, I would use a 2‑year starting point.  Obviously, to add the two starting points together would lead to a grossly excessive starting point.  Therefore, I find the combined approach appropriate here.  I have taken into account the tests both the prosecution and the defence refer to to ensure that the starting point is not excessive.

19.Defendant, please stand up.  There are relevant factors I take into account.  These include the defendant’s clear record, mitigation put forward, including three letters I have read from the defendant, his wife and parents.  I accept the defendant is genuinely remorseful.

20.Taking these factors into account, I intend to take a starting point for the ketamine of 5 years’ imprisonment.  I will increase that starting point by 3 months to take into account the quantity of cocaine.  Therefore, there is a starting point of 5 years and 3 months.

21.The defendant has pleaded guilty and is entitled to a discount of one-third for that plea.

22.After that discount is applied, the defendant is sentenced to 3 years and 6 months for this offence.

COURT: Do you understand that sentence?

DEFENDANT: Understand.