HKSAR v. Chan Kwok Kit, Ricky

DCCC 777/2017

[2018] HKDC 224

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 777 OF 2017

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REASONS FOR SENTENCE

1.Chan Kwok Kit, Ricky you have pleaded guilty to one charge of trafficking in 37.40 grammes of a powder containing 21.35 grammes of ketamine and 14.96 grammes of a solid containing 14.23 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.Full particulars of the offence are set out in the facts admitted by you today.  In summary at around 7:25 p.m. on 6 June last year the police executed a search warrant at Flat D, 9/F, Tak Hay Building, No 1-9 Tak Cheong Lane in Yau Ma Tei.

3.You led the police to your bedroom and pointed to a wardrobe where the police found four bags containing the ketamine and sixty-eight bags containing the cocaine.

Mitigation

4.In passing sentence, I have carefully considered everything said on your behalf by Miss Li, including that you are blind; that after your remand in custody your wife lost her baby; that you have a young son aged 2 to look after and a son aged 16 from a previous marriage.  I have read the mitigation letter from your wife.  

5.Under caution and in a subsequent video recorded interview you told police the ketamine was for your own consumption and that you kept the cocaine for Ah B. Miss Li informs the court that was not true and confirms that the ketamine and the cocaine were all kept for Ah B.

Guidelines

6.Various guidelines have been laid down for trafficking in drugs. 

7.In Secretary for Justice v Hii Siew Cheng[2]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. 

8.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.  Where the quantity of narcotic is between 10 and 50 grammes sentence falls within the range of 5-8 years[4].

9.Adopting the “individual” approach to sentence based on quantity alone the starting point for trafficking in 21.35 grammes of ketamine would be about 4 years and 6 months’ imprisonment and for 14.23 grammes of cocaine would be about 5 years and 3 months’ imprisonment. 

10.Applying what has been referred to as the “absurdity test” a starting point of 9 years and 9 months’ imprisonment is clearly excessive for if all the drugs were cocaine the starting point based on quantity alone would likely be no more than 6 years and 11 months’ imprisonment. 

11.I agree with Miss Li that the “combined” approach to sentence is appropriate. Although the quantity of cocaine found is less than the amount of ketamine found, cocaine is the most potent drug and attracts a higher starting point.

12.Adopting the starting point of 5 years and 3 months’ imprisonment for trafficking in 14.23 grammes of cocaine, I enhance the starting point by 9 months to 6 years’ imprisonment to reflect the fact that you were also trafficking in ketamine which represented about 60% of the drugs and that you have previous convictions for drug offences including one for trafficking in 2008. 

13.Applying both the “conversion test” and the “ratio test”, the calculation of which Miss Li has very helpfully submitted, I am satisfied the sentence, taking into account the aggravating features, would not be less than 6 years’ imprisonment[5]. 

14.Giving you full credit for your plea of guilty you are convicted and sentenced to 4 years’imprisonment.