HKSAR v. So Tsz Hin

HCCC 90/2019

[2019] HKCFI 2207

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 90 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 8th April 2018, at about 7.15 pm, the police set up a roadblock on Chuk Yuen Road, in Wong Tai Sin. About 10 minutes later, a car driven by So Tsz-hin, the accused, was stopped at the roadblock.

The accused was asked to produce his driver’s licence and identity card for inspection. In the course of this process the police noticed a drawstring bag between the thighs of the accused. In view of what the accused did with the bag, the officer became suspicious and asked the accused to alight from the car for a body and vehicle search.

On a search being conducted, cash of $28,940 was found in the shorts of the accused. The drawstring bag was examined and found to contain:

(1) 15 plastic bags containing 19.56 grammes of a solid containing 16.33 grammes of ketamine;

(2) 12 plastic bags containing 20.31 grammes of a crystalline solid containing 20.06 grammes of methamphetamine hydrochloride;

(3) 21 plastic bags containing 3.57 grammes of a solid containing 2.84 grammes of cocaine and 0.1 grammes of ketamine; and

(4) 25 bags containing 4.53 grammes of a solid containing 3.67 grammes of cocaine.

The accused was arrested and cautioned and said in answer to the caution that the drugs were for his own consumption and not for selling. The same proposition was reiterated in a video interview in which the accused participated.

The estimated retail market value of all the drugs seized was just over $30,000.

The accused was taken before a magistrate and in the result, he pleaded guilty in committal proceedings on 18th March 2019 and accepted a Summary of Facts. By reason of his plea and the acceptance of the Summary of Facts, the accused now accepts that he was in possession of the dangerous drugs for the purpose of unlawful trafficking.

He was born in 1993 in Hong Kong. He is aged 26. He is single and educated to secondary 5 level in Hong Kong. Following the completion of his education he has worked as an air-conditioning mechanic, a construction worker and a fire safety equipment manufacturer and mechanic. He earns $20,000 per month and he contributes a portion of that income to his father with whom he lives. As I say, he lived with his father who is divorced from his mother. Sadly, there is no contact with the mother.

The accused is addicted to ketamine, methamphetamine hydrochloride and cocaine and, also sadly, has been since he was aged 15.

He has a criminal history. Only one of those offences relates to drugs. In 2001, he was convicted of possession of dangerous drugs and sent to a Drug Addiction Treatment Centre. Most of the other offences occurred when he was quite young.

Sentencing principles trafficking in dangerous drugs

The accused has admitted to trafficking in ketamine, methamphetamine hydrochloride and cocaine. For many years the community of Hong Kong has taken a severe view of drug trafficking-particularly in relation to drugs such as the three drugs found in this case. It is easy to see why. Cocaine and ‘Ice’ have terrible consequences for the individual. They are both addictive. ‘Ice’, in particular, is savagely addictive. Ketamine is also a highly dangerous drug, the ingestion of which poses a serious risk of health and other consequences for the user. Ridding oneself of an addiction, particularly the cocaine and ‘Ice’, is, to say the least, a very arduous process and, sadly, history demonstrates that attempts to rid oneself of an addiction to cocaine is fraught with instances of disappointment. However, there are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs. There are consequences‑sometimes serious ones-for the families of those who become addicted to cocaine and ‘Ice’.

The view of the community is reflected in the maximum sentence provided by section 4 of the Ordinance. That provides for convictions on indictment that the maximum sentence is life imprisonment or a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs, the subject of the charge in this case.

Cocaine

The source of guidelines in relation to the trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming [1990] 2 HKLR 370. The correctness of the guidelines in relation to cocaine was confirmed by the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.

The applicable sentencing guidelines provide for a sentence after trial for quantities of up to 10 grammes, the sentencing range would be between 2 and 5 years is appropriate.

Methamphetamine Hydrochloride or ‘Ice’

In relation to ‘Ice’ the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The guidelines suggested for quantities involved in the present case in relation to ‘Ice’ for between 10 and 70 grammes is a sentence in the range of 7 to 11 years and that is to be seen in paragraph 34 of Tam Yi Chun. The range in question is on the basis once again of conviction after trial.

Ketamine

In relation to ketamine the sentencing guidelines for trafficking in ketamine were outlined in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, 29-20 reflect this. Relevant to this case the Court of Appeal suggested that cases involving between 10 grammes and 50 grammes, a sentence of between 4 and 6 years’ imprisonment is appropriate.

Sentencing where there is more than one drug involved

A further dimension to the sentencing exercise which is required in the present case is to consider the issue arising from the fact that there is a collection of different dangerous drugs to which the accused has pleaded guilty. The authorities identify different approaches. The approaches identified in the authorities recognise that an approach where a sentence for each component of a collection of drugs might, if they were simply added together, produce a result which was unjust. This is, in the final result, a reflection of the basic principle that sentence is an art and not a mathematical exercise and the art of sentencing is provided to producing a just result given the circumstances of the defendant. A just result in this context against the background of that imperative arises from the community and, thus the courts taking a very strong view in relation to trafficking of dangerous drugs. Different approaches were articulated in HKSAR v Yip Wai Yin [2004] 3 HKC 367; HKSAR v Ko Ka Hing [2009] 4 HKLRD 856, HKSAR v Wong Kin Kau [2010] 4 HKC 443 and HKSAR v Chan Yuk Leong CACC 318/2013. The essence of the appropriate approach is that if the drugs are approximately similar in nature then the approach known as the “combined approach” would be appropriate. See HKSAR v Ko Ka Hing [2009] 4 HKLRD 826, § 3. The Court of Appeal in that case, Cheung JA and Tong J, said that there might necessarily have to be adjustments even if the combined approach is used to avoid absurdity.

The concern to avoid absurdity in the circumstances of the case was underlined in the decision of HKSAR v Chan Yuk Leong to which I have already made reference.

In HKSAR v Wong Kin Kau (above), the Court of Appeal indicated that whichever approach is adopted, the paramount consideration was the totality of the overall starting point. In that regard, in that case, Tang VP indicated that the combined approach was more likely to lead to a just result ([2010] 4 HKC 443, § 5-6). That approach, so it seems to me, is the appropriate approach in the instant case.

Step one requires the determination of the relevant starting points for each drug. The starting point is fixed by looking at what would be the appropriate sentence had the case gone to trial. On the basis of the sentencing bands that have already been identified, the appropriate starting points, in pure mathematical terms, are as follows:

(1) Ketamine: 16.33 grammes + 0.10 gram=16.43 grammes, works out at 52 months;

(2) ‘Ice’: 20.06 grammes works out at 92 months; and

(3) Cocaine: 3.67 grammes + 2.84 grammes=6.51 grammes, that is, 47 months.

In the foregoing calculations, I have aggregated together the separate items of ketamine and cocaine even though they were mixed. So far as cocaine is concerned, it does make something of a difference. So far as the ketamine is concerned, the difference is beyond marginal.

Individual approach

To sentence the accused on the basis of treating each drug separately and adding up the sentence for each drug would produce a sentence of in the vicinity of 15½ years. That would be a totality which does not properly reflect the justice of the case.

In my judgment, the next issue is which of the three drugs in the circumstances is to be regarded as the most serious. On any realistic view, that drug must be ‘Ice’. The normal calculation of the starting point for the quantity of ‘Ice’ involved in this case produces the highest penal sanction notwithstanding the weight of the drug. There is also a far more important reason which makes me think that ‘Ice’ is the most serious and that is, in my judgment, it is the most harmful of the drugs. It is addictive. It is devilishly difficult to rid oneself of the addiction and the conduct of persons on ‘Ice’ is well known to be potentially very dangerous for the consumer of ‘Ice’, but perhaps more importantly to members of the family of the consumer and the wider public. It is appropriate to judicially notice the fact that putting a person who is affected by ‘Ice’ behind the wheel of a vehicle is nothing short of a recipe for disaster. Accordingly, ‘Ice’ should be regarded as the most serious of these drugs.

Absurdity test

Then look at the absurdity test. It is appropriate to test the position against the consequence of ‘Ice’ being the most serious and applying the absurdity test. If all of the drugs seized were ‘Ice’ which produces a combined weight of 43 grammes, the mathematical starting point would be of the order of 110 months, which is 9 years and 2 months.

Conversion test

On the premise that ‘Ice’ is to be regarded as the most serious drug, then to be taken as the base for the sentence, on that premise, the calculation is as follows, and I will not repeat in public the calculation but it comes to 97 months. That is, 8 years and 1 month.

Drug	Purity (grams)	Conversion to Ice	Starting point
Ketamine	16.43 g	3.30 g
Ice	20.06 g	20.06 g
Cocaine	6.51 g	2.38 g
	TOTAL	25.75 g	97 months

Ratio test

The ratio test appears to produce a result of about 91 months, that is 7 years and 7 months’ imprisonment and, once again, I will not go through the mathematics of that. It will appear in the written form of this judgment.

Drug	Purity (grams)	Sentence assuming 43 g of single drug	Ratio	Sentence (years)
Ketamine	16.43/43	5.7 years	0.3821	2.178
Ice	20.06/43	9.2 years	0.4665	4.292
Cocaine	6.51/43	7.5 years	0.1514	1.136
			TOTAL	7.606

Combined approach

The absurdity test, the conversion test and the ratio tests are simply means to the ultimate object of providing a cross check as to where the appropriate sentence lies. Notwithstanding the appearance of precision in each of these tests, they conceal the imperatives behind the combined approach. The ultimate result is still to meet the objects of the sentencing policy of the courts of Hong Kong, which is deterrence, plain and simple. There is also to be considered that there is an element of greater seriousness in trafficking of more than one drug at a time. It seems to me that a starting point of 7 years and 8 months produces a just result.

Portion for self-consumption

The accused asserted that a proportion of the drugs was for self-consumption. In this regard, the accused pointed to his previous conviction for possession of dangerous drugs and his assertion, on arrest, the dangerous drugs were for his own consumption. The authorities clearly recognise that on a trafficking in dangerous drug case the possession of some of the drugs, the subject of the charge, for self-consumption, can be a mitigating factor. That may be seen in R v Chan Mung Lung [1992] 2 HKCLR 127, HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, and more recently in, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121. But as that case makes plain, possession of dangerous drugs is itself a serious offence and there is also the issue of “latent risk” to consider.

There are a number of factors outlined in HKSAR v Wong Suet Hau (above) as to assist the evaluation of the assertion that part of the drugs in question were for personal consumption so far as that affects sentence. The factors outlined in that case are:

(1) Generally speaking, if it is accepted that a portion of the drugs concerned were for self-consumption, the downward adjustment of sentence to reflect this fact should be a broad-based evaluation.

(2) Evaluation should be informed by the fact that possession of dangerous drugs is itself an offence and carries with it a possible term of imprisonment.

(3) The part of the drugs, the subject of the charge, which are accepted to be for the self‑consumption of the accused, should take into account what is characterised as the “latent risk” factor. (See: HKSAR v Mok Cho Tik [2001] 1 HKC 261, which takes into account the risk that some of the drugs intended for self-consumption may, nevertheless, find their way into the hands of others.

(4) The courts in evaluating whether some part of the drugs, the subject of the charge are for self-consumption and, if so, the proportion of such drugs, must act judicially and in accordance with the law governing the burden and standard of proof in relation to matters advanced in mitigation.

In addition, the Court of Appeal has identified a number of practical indicia for determining whether there was force in the assertion that a proportion of the drugs might be for self‑consumption.

Perhaps the critical point made in the Court of Appeal is that the portion for self-consumption had to be a significant proportion.

In HKSAR v Wong Suet Hau, the court clearly implied that a significant proportion was not simply a proportion greater than trivial. Anything less than a significant proportion being retained for self-consumption would make no or practically very little difference to the sentence. See: Stuart-Moore VP in HKSAR v Wong Suet Hau (above) at paragraph 34. That point was made in HKSAR v Chow Chun Sang (above) where Yeung VP held:

“We are of the view that in trafficking cases where all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should be, depending on the circumstances fall somewhere between 10 per cent and 25 per cent of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors such as the total quantities of drugs involved, the proportion of drugs intended for self-use, the nature of the drugs where the drug trafficking was for financial gain and whether the trafficking was organised and premeditated and the background and criminal record of the defendant. Plainly, when one factors sentence for possession and the enhancement which would be justified by reason of latent risk in virtually all cases, it would clearly take a significant proportion of drugs to be for self-consumption to justify a discount in the range of 10 to 25 per cent”.

In HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572, the point was reinforced because the Court of Appeal there specifically restated that a discount would only be available for cases where a significant proportion of the dangerous drugs in which the defendant trafficked was for self-consumption. Finally, in HKSAR v Liu Ming Sze [2017] 1 HKLRD 297, after an extensive review of the authorities, it concluded for self-consumption up to 10 per cent would not qualify for the kind of discount contemplated in HKSAR v Chow Chun Sang (above) (See: [2017] 1 HKLRD 297, paragraph 28). The factual context of this case is very important to understand the point being made by the Court of Appeal. The complaint on appeal was that the sentencing court had given a discount of below the 10 per cent to 25 per cent range in HKSAR v Chow Chun Sang. The quantity of drugs accepted for self-consumption in that case was up to 10 per cent. Accordingly, it is hardly surprising that the proportion was unlikely to attract discounts of the magnitude suggested in HKSAR v Chow Chun Sang. The court in HKSAR v Liu Ming Sze refused the applicant leave to appeal and left undisturbed the notion of some discount being given for the proportion of drugs.

Discount for guilty plea

The authorities demonstrate that the person who pleads guilty at the earliest practicable moment is ordinarily entitled to a discount from the appropriate starting point of 33 per cent.

As I have already indicated, the appropriate starting point on what is characterised as the combined approach, would be imprisonment for 7 years and 8 months.

I am prepared to accept that a substantial portion of the drugs, the subject of the charge, was for personal consumption. Consistent with HKSAR v Wong Suet Hau (above), I am satisfied that there is no necessity for a Newton hearing. I am not able to quantify with any real precision the proportion of cocaine and the other drugs in possession of the accused which was for personal consumption. I am certain that the quantity for self-consumption was not of the order of 10 per cent. I think it was substantially less than 20 per cent and more likely to be in the range of 10 to 20 per cent, but very much at the lower end of that scale. In my judgment, (making allowance for the penalty for possession of such drugs and the adjustment in relation to the obvious and potent “latent risk”), the proportion for self-consumption is such as to make a difference in the sentence which the accused would otherwise receive.

The course I propose to adopt is to adjust the discount upwards to reflect the proportion of drugs possessed by the accused were for self-consumption. The enhanced discount reflects that the cocaine and other drugs possessed by the accused for self-consumption constitutes a potential crime and there would be, as I say, a potent “latent risk” with the possession of such a quantity. I judge that the appropriate discount for the plea of guilty and the possession of drugs for self-consumption is 38 per cent.

Accordingly, on a calculation, the order of this court is that the accused be sentenced to 4 years and 9 months’ imprisonment.