HKSAR v. Li Ching Hei

HCCC 448/2017

[2018] HKCFI 1483

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 448 OF 2017

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

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COURT:

These are my reasons for sentence.

The 35-year-old male defendant was committed to this court for sentence on 11 December 2017 from Eastern Magistracy, on a single charge of trafficking in 32.93 grammes of cocaine, and 11.6 grammes of methamphetamine hydrochloride, or “Ice”.

The facts of the case are straightforward. The defendant was intercepted as he came out of residential premises in Mong Kok. When he was searched, in his trousers pocket was found six plastic bags containing, in total, the cocaine the subject of the charge, and another two plastic bags containing the total amount of “Ice” set out in the charge.

When the premises were searched, empty resealable plastic bags were found, an electronic scale, and $22,000 in cash.

The first issue which arises in arriving at a starting point of sentence is a claim by Ms Lo on behalf of the defendant, that one of the six plastic bags containing the cocaine was for his own consumption.

Three of those plastic bags contained about 11 grammes of cocaine each. The other three contained, in total, 43 grammes of cocaine.

Ms Lo’s submission on behalf of the defendant who did not give evidence in this regard, is directed at one of the larger plastic bags containing about 11 grammes of cocaine. Given the presence of cocaine in the defendant’s urine following his arrest and the previous criminal history of the defendant involving the possession of dangerous drugs resulting in a DATC order in March of last year, I will accept the defendant was an addict at the time of this offence. But I do not accept that he had one of the three larger plastic bags carried with him for his own consumption for the simple reason that the quantity of drug in any one of those bags was too large for his immediate personal consumption, and the packaging not amenable to individual doses of consumption.

But more convincingly, it seems too much of a coincidence that the drug said by his counsel to be for the defendant’s personal consumption was in the same amount as the drug in each of the other two large plastic bags, which were for trafficking, and all being carried in the same trouser pocket. I am sure all the contents of the three larger plastic bags were possessed by the defendant for the purpose of trafficking.

However, I am prepared to accept that the cocaine in one or more of the three smaller plastic bags containing in total 0.43 grammes of cocaine may have been for the defendant’s personal consumption. When that amount of 0.43 grammes of cocaine is removed from the total of 32.93 grammes of cocaine, it will result in a revised total of trafficked cocaine of 32.5 grammes.

In other words, that amount of drug which I am prepared to allow the defendant for his self-consumption makes no real practical difference to the starting point of the sentence. In calculating that starting point, I consider a conversion test to be the most appropriate. Ms Lo for the defendant has provided me with a calculation which in my view allows the defendant a slightly lower starting point than the ratio test, and which accords with the methodologies stated in Chan Yuk Leong at paragraph 14 of that case.

That would suggest the following:

1. The 32.5 grammes would attract a starting point of about 6 years 6 months’ imprisonment.

2. That would equate to a starting point of sentence for 9 grammes of “Ice”.

3. By adding that equivalent quantity of “Ice” to the 11.6 grammes of “Ice”, the subject of the charge, a total notional quantity of 20.6 grammes of “Ice” is thereby derived.

On that basis, the starting point of sentence arrived at is 7 years 6 months’ imprisonment.

The mitigation available to the defendant is solely his early plea of guilty. I am satisfied that the letter to the court to the defendant expressing his remorse may well be a truthful reflection of his feelings, as is the letter to the court from his wife a truthful statement of her feelings and circumstances. But those matters cannot further reduce his sentence. Accordingly, the starting point of sentence of 7 years 6 months’ imprisonment is discounted by one-third to a sentence of 5 years’ imprisonment.