HKSAR v. Lo Ka Chun

HCCC 122/2018

[2018] HKCFI 1572

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 122 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant, Lo Ka-chun, faced two counts of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The Summary of Facts disclosed that on 27 September 2017, the defendant was intercepted by customs officers performing anti-narcotics duty at the lobby of the Prudential Hotel. Upon search of the defendant at the business centre of the hotel, two plastic bags containing suspected dangerous drugs were found inside the defendant’s trouser pocket.

One bag was later confirmed to contain 13.4 grammes of a powder containing 5.72 grammes of ketamine. The other bag was confirmed to contain 3.19 grammes of a crystal solid containing 3.19 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’. That is the 1st count.

The defendant was arrested and under caution he said, among other things, that the two plastic bags belonged to him and they contained ‘K Chai’. The defendant also said that he lived at Room 1013 of the Prudential Hotel. With the use of a hotel key found on the defendant’s person, the door of Room 1013 was opened.

Upon search, inside the drawer of a desk, 32 plastic bags of suspected dangerous drugs were found. They were later confirmed to be:

(a) 30.7 grammes of a powder containing 10 grammes of ketamine.

(b) 65 grammes of a crystalline solid containing 64.7 grammes of methamphetamine hydrochloride.

(c) 15.7 grammes of a solid containing 12.3 grammes of cocaine.

Apart from the dangerous drugs, the officers also found an electronic scale and three bundles of empty plastic bags. A hotel receipt and $1,000 cash were also found inside the drawer. The defendant was cautioned again. Under caution, the defendant said, among other things, that, “The items were K Chai, ‘Ice’ and coke”. All were dangerous drugs.

The officers found a locked save inside the room. With a password provided by the defendant, the officers opened the safe. Inside, 10 bags containing what was later confirmed to be 134 grammes of a powder containing 48.1 grammes of ketamine was found. The officers also found cash of $100,000 inside an envelope in the safe.

Under caution again, the defendant said the items were K Chai, and that the money belonged to him for the use of his family.

The total amount of dangerous drug seized was 63.82 grammes of ketamine, 12.3 grammes of cocaine and 67.89 grammes of ‘Ice’.

The estimated value of all the dangerous drugs seized was about $120,941.71.

Background and Mitigation

According to the antecedents statement taken from the defendant, the defendant was born in June 1991, so he is now 27 years of age. He has two previous convictions, one for possession of dangerous drug and one for possession of equipment fit for the intake of dangerous drug. He was sentenced to a drug addiction treatment centre.

The defendant was educated up to Form 4 level, or secondary level, class 4. He worked as a construction site worker from 2001 to 2017 and his last job was a logistics worker earning $13,000 per month.

Mr Newman Wong, counsel for the defendant, provided some more information on the defendant. I was informed that the defendant was married, but is now separated from his wife. He had taken up an apprenticeship in air conditioning work and as he did not like the work involved, after he got his licence, he later worked in the logistics field.

The defendant was also recalled by the DATC after release for a further 3 months, so he was last released about 4 months before the offence.

The defendant was a drug addict, which was borne out by the urine test done on him upon his admission to the Lai Chi Kok remand centre on 30 September 2017. It was submitted that the defendant found it hard to cope with life after his release, and he was being used by others to deal with dangerous drugs, getting some of the drugs as a reward for his own consumption.

As to the appropriate starting point, Mr Wong painstakingly took me through various methods adopted previously with reference to the relevant authorities. Basically, Mr Wong submitted that if one treats all the dangerous drugs as ‘Ice’, the most serious among the lot, one would still be looking at a starting point of about 12 years and 3 months. So the starting point should be lower than that ceiling.

I must stress that Mr Wong had also fairly and correctly emphasised that the sentencing is within the court’s discretion. Mr Wong also submitted, on the defendant’s behalf, that the defendant was allowed by his boss to take up to 2 grammes of ‘Ice’ and a maximum of 2 grammes of ketamine per day, as a reward. The defendant did not abuse any cocaine.

Mr Wong submitted that being given approximately 10 per cent of the drugs seized as a reward, on top of some petty cash for daily expenses, is not unreasonable or unbelievable. And it was also submitted that the dangerous drugs seized were intended for sale for a period of a week, and the defendant was caught on the first day of the operation, having checked into the hotel on that day, on the day of the arrest.

Mr Wong urged me to accept that 10 per cent of the drugs seized was for the defendant’s own consumption in consideration of the sentence. Mr Wong also confirmed that the defendant would not ask for a Newton hearing, should the court decline to accept the mere assertion of the defendant.

The sentence

Trafficking in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of $5 million and to imprisonment for life.

Although the defendant was convicted of two counts of trafficking in a dangerous drug, or dangerous drugs, on the facts of this case, both offences were clearly connected, so it would be proper for me to have regard to the total amount of dangerous drugs in both counts, to arrive at an overall starting point. That is to see the case of HKSAR v Chow Yu Chi CACC 359 of 2000, HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542 and the case of HKSAR v Wong To [2001] 4 HKC 499.

This case also involved the trafficking in three kinds of drugs, that is ‘Ice’, cocaine and ketamine, so I will first look at the appropriate starting point for each dangerous drug and then consider the appropriate starting point for all.

‘Ice’

The ‘Ice’ involved here amounts to 67.89 grammes, so according to the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the appropriate band is between 10 to 70 grammes with a starting point of one between 7 to 11 years.

Cocaine

The total quantity is 12.3 grammes, which falls into the category of 10 to 50 grammes with a starting point of 5 to 8 years. See the case of the Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, adopting the case of The Queen v Lau Tak Ming [1990] 2 HKLR 370.

Ketamine

The quantity of ketamine involved here is 63.82 grammes. So according to the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, that amount falls into the band of 50 to 300 grammes, with a starting point of 6 to 9 years.

Now, having considered the two different approaches, that is, the individual approach and the combined approach, I am of the view that the combined approach will be a fairer one. Now, while the potency of ‘Ice’ and cocaine may not be too different, as the quantity of ‘Ice’ is more here than cocaine, I will use ‘Ice’ as the basis to calculate the appropriate starting point and then I will adjust upwardly this starting point to take into account the significant quantities of the other two drugs.

On the facts, the defendant used a hotel room to store the three kinds of dangerous drugs and supplying them to others. So having considered all the circumstances, I am of the view that a starting point of 11 years is appropriate for the trafficking of ‘Ice’ in question.

The cocaine on its own would have attracted a starting point of 5 years and the ketamine on its own, 6 years. The quantity of cocaine is not too significant but the quantity of ketamine is, in my view, rather significant. But on the other hand, if the cocaine and the ketamine were also ‘Ice’, the starting point of 144.01 grammes of ‘Ice’ will be about 12½ years.

I am of the view that an upward adjustment of one year is appropriate here, bearing in mind that there was three types of dangerous drug involved and the fact the defendant was actively supplying dangerous drug to others from a hotel room.

With this enhanced starting point of 12 years, I now have to consider if there is any aggravating factor to further enhance this starting point.

Now, although the defendant is not a first offender, having committed drug-related offences before, I will not enhance the starting point on account of his record.

I now have to come to consider any factor to reduce the sentence. It was submitted that about 10 per cent of dangerous drug seized, that is, ‘Ice’ and ketamine, would have been used by the defendant as his reward.

Although I have indicated during submission that I was prepared to accept up to 10 per cent of the ‘Ice’ and ketamine were intended for the defendant’s own consumption as a reward, having further considered the matter, in particular the fact that no smoking equipment were found inside the room, that $100,000 cash, clearly drug money, were found inside the safe, which in turn indicated that it was not the first day the defendant started to sell dangerous drugs even though it might be the first day that he did so at the Prudential Hotel, I changed my mind and did not accept the defendant intended to use up to 10 per cent of the ‘Ice’ and ketamine seized for his own use, merely upon his own assertion.

Whatever amount the defendant was allowed to use, it would not have amounted to a significant one to warrant any reduction. And I will repeat here that after the defence was told that I would not accept this mere assertion, Mr Wong had clearly indicated to me that the defendant would not ask for a Newton inquiry for me to further consider the matter. So the starting point remains at 12 years.

I now have to consider the mitigating factor. The most important mitigating factor is, of course, the defendant’s plea of guilty at the earliest available opportunity. I will give him the usual one-third discount. I do not see any further ground to reduce his sentence.

So for the actual sentence, the 1st count, 8 years; 2nd count, 8 years. Both sentences to run concurrently, making a total of 8 years’ imprisonment.