HKSAR v. Chan Lok Him

DCCC 125/2019

[2019] HKDC 995

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 125 OF 2019

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 6.99 grammes of a solid containing 5.28 grammes of cocaine and 39.35 grammes of a solid containing 21.52 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.Full particulars of the offence are set out in the facts admitted by the defendant today.

3.In summary at around 4:28 p.m. on 23 October last year the police were patrolling the rooftop of Fortune Estate Carpark in Cheung Sha Wan when they saw the defendant acting furtively.

4.The police approached and conducted a search.  The police found inside the right inner pocket of the defendant’s jacket seven transparent re-sealable plastic bags containing ketamine and inside the left inner pocket of the defendant’s jacket six transparent re-sealable plastic bags containing cocaine.  

5.The defendant told the police that there were two more bags of dangerous drugs in the flower bed behind him.  The police seized the two bags. 

6.Inside one bag was twenty-seven plastic bags containing ketamine.  Inside the other bag was thirty-four plastic bags containing cocaine and one plastic bag containing ketamine.   

7.The defendant was also found in possession of $4,648.10 and one mobile phone. 

8.The estimated street value of the dangerous drugs was $28,782.

9.Under caution and in a subsequent video recorded interview the defendant admitted, inter alia, that he was acquainted with a friend called Ah Fei who he knew was involved in drugs; he asked Ah Fei for a job because he was in debt; Ah Fei telephone him on 21 October and arranged to meet him on 23 October; on 23 October he received $600 from Ah Fei to take the drugs to the rooftop to sell to customers; he knew the plastic bags contained cocaine and ketamine; he would receive an extra $2,400 afterwards; $600 of the $4,648.10 was given to him by Ah Fei and that he did not have a drug habit. 

Mitigation

10.In passing sentence, I have carefully considered the oral and written submissions of Miss Ma together with the mitigation letters written by the defendant and his father, who is in court today together with other family members showing their support for the defendant. 

11.I take into account the defendant is only 16 and has a clear record. 

12.Section 109A of the Criminal Procedure Ordinance[2], provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  Whilst this provision does not apply to trafficking in a dangerous drug, which is an excepted offence, a court must exercise great care before committing a young offender to prison. 

13.Miss Ma submits that given that the defendant is a first time offender and mindful of his young age the court should call for background and training centre reports before passing sentence[3].   In his letter the father asks for his son to be given a chance of rehabilitation.

14.In Secretary for Justice v Chau Tsz Tim the Court of Appeal restated that only in very rare cases where there are exceptional circumstances will a Training Centre Order be appropriate for trafficking in substantial quantities of drugs[4].     

15.After very careful consideration I am satisfied that this is not one of those very rare cases where a Training Centre Order would be appropriate.  The defendant initiated the commission of the offence by approaching a friend he knew was involved in drugs and asking him if he had a job because he was in debt[5].

16.Notwithstanding the defendant’s young age, I am satisfied there are no exceptional circumstances warranting departure from the guidelines.  I decline to call for any reports before passing sentence. 

Guidelines

17.In Secretary for Justice v Hii Siew Cheng[6]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. 

18.The courts have equated for sentencing purposes cocaine with heroin[7].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin.  Where the quantity of narcotic is up to 10 grammes sentence falls within the range of 2-5 years’ imprisonment. 

19.Adopting the “individual” approach to sentence based on quantity alone the starting point for trafficking in 21.52 grammes of ketamine would be just under 4 years and 7 months’ imprisonment and for 5.28 grammes of cocaine would be about 3 years and 7 months’ imprisonment. 

20.Applying what has been referred to as the “absurdity test” a starting point of 8 years and 2 months’ imprisonment is clearly excessive for if all the drugs were cocaine the starting point based on quantity alone would likely be about 6 years and 3 months’ imprisonment. 

21.I agree with Miss Ma that the “combined” approach to sentence is appropriate[8].  However, I disagree with Miss Ma’s application of this approach.  Miss Ma has simply applied the ratio test to determine sentence and not as a means to cross-check the sentence[9]. 

22.Although cocaine is the most potent drug the quantity of ketamine is substantially more representing 80% of the drugs seized and attracts a higher sentence. 

23.Taking into account the young age and clear record of the defendant and that the defendant told the police about the larger quantity of drugs in the flower bed, I am satisfied that a starting point of 4 years and 3 months’ imprisonment is appropriate for trafficking in 21.52 grammes of ketamine, which starting point I enhance by 9 months to 5years’ imprisonment to reflect the fact that the defendant was also trafficking in 5.28 grammes of cocaine.     

24.Applying both the “conversion test” and the “ratio test”, I am satisfied the sentence would not be less than 5 years’ imprisonment[10].

25.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 3 years and 4 months’imprisonment.