HKSAR v. Lai Wing Sum

HCCC 286/2019

[2019] HKCFI 3161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 286 OF 2019

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

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COURT:

The defendant was charged with two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The 1st count alleges that he, the defendant, on 7 September 2018, at Wan Poon House, Chai Wan Estate, Chai Wan, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 50.45 grammes of a powder containing 42.71 grammes of ketamine and 26.83 grammes of a solid containing 21.37 grammes of cocaine.

The 2nd count alleges that he, on the same day, at Room 935, Lok Hing House, Hing Wah (II) Estate, No 18 Wan Tsui Road, Chai Wan, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 5.38 grammes of a powder containing 1.52 grammes of ketamine.

The defendant pleaded guilty to both charges before the magistrate at the committal stage, and was on 26 August 2019, committed to the Court of First Instance for sentence.

He comes before me today for sentence having confirmed his plea and admission of the Summary of Facts.

Facts of the case

In gist, the facts giving rise to the offences as admitted by the defendant when he entered his plea of guilty were as follows:

At around 1.40 pm of 7 September 2017, two police officers conducted patrol at Wan Poon House, Chai Wan Estate, Chai Wan, and at one of the staircases (No. 2 staircase) on the 37th floor, they met the defendant who was then walking downstairs. Upon seeing the police, the defendant immediately turned around and rushed upstairs. The two police officers then gave chase and eventually intercepted the defendant at the staircase on the 39th floor. When asked why he turned and fled upon seeing the police, the defendant made no reply at the time.

The officer then conducted a search on the defendant. Inside a plastic bag that the defendant was holding the police found 197 plastic bags containing suspected dangerous drugs. 48 out of these 197 plastic bags were later confirmed to contain ketamine; whereas the remaining 149 bags were found to contain cocaine.

Upon subsequent analysis, the total quantity of drugs contained in these 197 plastic bags seized from the defendant was confirmed to be (i) a total of 50.45 grammes of a powder containing 42.71 grammes of ketamine and (ii) 26.83 grammes of a solid containing 21.37 grammes of cocaine. These form the subject matter of Count 1.

The defendant was arrested and cautioned. Under caution, the defendant claimed to have purchased the drugs for his self-consumption.

Later the same day, at about 6.30 pm, a party of police officers escorted the defendant back to his residence at Hing Wah (II) Estate for a house search. As a result, the police found a transparent resealable plastic bag containing 8 packets of white powder hidden between a mattress and a pillow at the lower bunk bed in the defendant’s bedroom. These 8 packets of white powder were later confirmed to be a total of 5.38 grammes of a powder containing 1.52 grammes of ketamine. They formed the subject matter of Count 2.

The defendant was arrested and cautioned again in respect of this second lot of drugs found inside his residence. Under caution, he claimed that the 8 packets of ketamine were for his own consumption and that they had nothing to do with his family members.

In a subsequent video recorded interview, the defendant admitted under caution that he had no full-time job, but occasionally worked part-time, earning $12,000 monthly. He claimed to be a drug addict, consuming two bags of cocaine and a bag of ketamine daily. He admitted knowledge of the drugs found on his person as ketamine and cocaine, which he said he had purchased from a man in August 2018 at a park in Chai Wan at $15,000, for his own consumption. He had since lost contact with that man. He said he had hidden the drugs inside a fire sprinkler box at 39th floor of Wan Poon House in mid-August 2018 for safekeeping and that he had just retrieved the drugs shortly before his arrest. For the drugs found in his residence, the defendant admitted that they were ketamine which he had purchased from a man in mid-August at $500. He kept the drugs under his pillow in his bedroom.

A urine test was subsequently conducted and the defendant was tested negative of drugs.

At the time of the offence, the estimated retail value of the whole lot of drugs seized was $65,157; namely, $26,575 for the ketamine and $38,582 for the cocaine.

By pleading guilty and admitting the facts, the defendant now accepts that at the material time he did possess all the drugs, the subject of the two counts for the purpose of unlawful trafficking.

Defendant’s background

According to his antecedents statement and as supplemented by his counsel in mitigation, the defendant is now 24 years old. He was born in China and later came to Hong Kong, receiving education here up to Form 2. He said he worked as a part-time waiter since 2012 earning $12,000 per month. According to the antecedents, he lived with his parents and elder sister at the flat, the subject of Count 2. But his counsel, Mr Chu, today told the court that the defendant was in fact married to a Mainland lady in 2018, who has not immigrated to Hong Kong to join him. Therefore, the defendant lived alone at the reported address.

The defendant has four previous criminal convictions, involving 10 different offences of various nature. In November 2013, he was convicted of four offences in a magistracy matter for assault occasioning actual bodily harm, common assault, possession of instrument fit for unlawful purpose and possession of prohibited weapons, for which offences he was sentenced to Drug Addiction Treatment Centre. In October 2015, he was sentenced to 12 months’ probation order for an offence of operating a gambling establishment. Shortly thereafter, in January 2016, he was convicted of drink driving, careless driving and other related driving offences and was sentenced to a concurrent term of 12 months’ probation order, fined a total of $8,000 and was disqualified from driving for 12 months. In September 2017, he received a six-month imprisonment term for possession of offensive weapon. He was discharged from prison on 9 January 2018, about eight months before the present offences.

The defendant claimed to be a drug user, consuming one gramme of cocaine and 0.5 grammes of ketamine every day. That said, in mitigation on his behalf, it was specifically said that the defendant did not possess any of the drugs seized in this case for the purpose of his own consumption.

In mitigation, it was confirmed on behalf of the defendant that he denied having any of the drugs for his own consumption. In a succinct written mitigation submission, whilst assisting the court with the various calculation of sentences using the different tests applicable under the combined approach, Mr Chu put forth realistically the only strongest mitigating factor of the defendant’s early plea to both charges at the committal stage, which represents his genuine remorse and which saves a lot of precious time and resources of the court. The court was urged to allow the defendant the full one-third discount so that he may have the chance to rehabilitate and turn over a new leaf before he gets too old for that.

Sentencing principles and tariffs

For many years, the community of Hong Kong has taken a severe view of drug trafficking, particularly in relation to drugs such as cocaine and ketamine, which are easily addictive and have for both the individual and the society at large severe consequences. The view of the community is reflected in a maximum sentence provided for the trafficking in dangerous drugs offence under section 4 of the Ordinance, which is punishable with life imprisonment and a fine of $5 million. The view of the community is also reflected by the court in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The policy underlining the approach to sentence for drug trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines in the form of tariffs for various forms of dangerous drugs, including the two drugs, the subject of the charges in this case.

The tariffs that is applicable to trafficking in cocaine is derived from the Court of Appeal’s decision in R v Lau Tak Ming & Others [1990] 2 HKLRD 370, itself a tariff case for heroin, which is confirmed to be also appropriate for cocaine. See AG v Pedro Nel Rojas [1994] 1 HKC 342 and HKSAR v Abdallah [2009] 2 HKLRD 437.

On the other hand, the tariffs that is applicable to ketamine is set out in SJ v Hii Siew Cheng [2009] 1 HKLRD 1.

According to the applicable sentencing tariffs, quantities between 10 and 50 grammes of cocaine would attract a starting point for sentence after trial of between 5 to 8 years’ imprisonment, whereas quantities between 10 and 50 grammes of ketamine would attract a starting point of between 4 and 6 years’ imprisonment.

And as the Court of Appeal held in Lau Tak Ming at page 386, within the suggested bands, factors which the sentencing judge may properly take into account are -

i. The profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from trafficking in the quantities of dangerous drugs involved;

ii. The number of packets;

iii. The type of mixture containing the narcotic;

iv. The degree of involvement of the offender; and

v. The defendant’s previous history of narcotic offences and matters of mitigation which may have been advanced on his behalf.

Sentencing principles where there is more than one drug involved

Combine Approach - The 3 tests

A further dimension to the sentencing exercise which is required in this case is to consider the issue arising from the fact that there is a collection of different dangerous drugs. The authorities identify different approaches which 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, HKSAR v Yau Ka Ming, CACC 144/2013, HKSAR v Chan Yuk Leong, CACC 318/2013, and more recently in HKSAR v Cheung Wai Man [2019] 1 HKLRD 817. These approaches are a reflection of the basic principle that sentencing is an art, not a mathematical exercise, and the art of sentencing is devoted to producing a just result given the circumstances of the defendant and the circumstances of the case. 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 fair and appropriate (see Ko Ka Hing at paragraph 3). There might necessarily have to be adjustments even if the combined approach is used to avoid absurdity.

Whichever approach is adopted, the paramount consideration was the totality of the overall starting point. In that regard, as remarked by Tang VP (as he then was) in Wong Kin Kau, often the “combined approach” was more likely to lead to that result. That approach, so it seems to me is the appropriate approach in the instant case.

The first step requires the determination of relevant starting points for each drug. On the basis of the sentencing bands that have already been identified, the appropriate starting points, in pure mathematical terms, are as follows:

(1) Cocaine: 21.37 grammes of cocaine would attract a starting point of about 5 years 10 months; and

(2) Ketamine: 44.23 grammes of ketamine would attract a starting point of about 5 years and 9 months.

Plainly, to sentence the defendant on the
“individual approach” by treating each drug separately and adding up the sentence for each drug would produce a sentence to the tune of 11 years 7 months. That would obviously be a totality which is too high and which does not properly reflect the justice of the case.

The “combined approach” would involve applying the guidelines for cocaine, being the more serious drug in terms of potency. As stated above, the starting point for 21.37 grammes of cocaine is one of 5 years 10 months, which should be adjusted upwards to take into account the 44.23 grammes of ketamine seized.

I come to the view that the justice of the case is best served by adopting the “combined approach” and adjusting upwards the starting point of 5 years 10 months to 6 years 6 months, which is 78 months, taking into account the quantity of ketamine involved.

I have cross-checked this starting point against the results of the absurdity test, the conversion test and the ratio test as illustrated below.

Absurdity test

The relevant principle is stated in HKSAR v Yip Wai Yin [2004] 3 HKC 367. It is appropriate to first test the position against the consequence of cocaine being the most serious and applying the absurdity test. If all of the drugs seized were cocaine, which produces a combined weight of 65.6 grammes, the mathematical starting point would be around 101 months, namely, 8 years 5 months.

Conversion test

The relevant principle is stated in HKSAR v Wong Kin Kau [2010] 4 HKC 443. I apply the conversion test by converting all the drugs into the two different types of drugs, namely, ketamine and cocaine respectively.

Converting all the drugs into ketamine

1.The starting for trafficking in 21.37 grammes of cocaine would result in 5 years and 10 months’ starting point. 

2.5 years and 10 months is the starting point for trafficking in around 46 grammes of ketamine, so 21.37 grammes of cocaine would be equivalent to 46 grammes of ketamine.

3.If all the drugs were ketamine the original 44.23 grammes plus 46 grammes would result in 90.23 grammes of ketamine in total. 

4.For this quantity of ketamine, 90.23 grammes of ketamine, starting point for trafficking would be 6 years and 6 months, which is 78 months.

Converting all the drugs into cocaine

1. The starting point for trafficking in 44.23 grammes of ketamine is 5 years and 9 months.

2. This starting point of 5 years and 9 months is equivalent to the starting point for trafficking in around 20 grammes of cocaine, so 44.23 grammes of ketamine would be equivalent to 20 grammes of cocaine.

3. If all the drugs were cocaine, the original 21.37 grammes plus 20 grammes there would 41.37 grammes of cocaine in total.

4. So the starting point for trafficking in 41.37 grammes of cocaine is one of 7 years and 4 months, namely 88 months.

Thus, under the conversion test, the lower of the starting points would be to convert all drugs into ketamine, which would produce 6 years and 6 months as the starting point.

Ratio test

The principle is stated in HKSAR v Yau Ka Ming, CACC 144/2013. The ratio test would produce a result of about 83 months, namely 6 years and 11 months’ imprisonment, calculated on the following basis.

Starting point adopted for this case

The absurdity test, the conversion test and the ratio test are a means to the ultimate objective of providing a cross-check as to where the appropriate sentence lies. The ultimate result is still to meet the objects of the sentencing policy of the courts of Hong Kong, which is deterrence, combined with a recognition that a separate treatment of each drug together with a consecutive sentence might not produce a just outcome, even against the imperative of deterrence.

In the circumstances of this case, it seems to me that a starting point of 78 months, according to the conversion test by converting all drugs into ketamine, would produce a just result.

Such a starting point, namely 6 years 6 months is about right in the circumstances of this case, taking into account the various factors as set out in Lau Tak Ming as mentioned above, including the large number of packets of drugs involved, the circumstances of offending and the defendant’s previous criminal convictions, which are all unrelated to the present offences.

Discount for guilty plea

The authorities demonstrate that a person who pleads guilty at the earliest practical opportunity is entitled to a full one-third discount from the appropriate starting point. The defendant pleaded guilty at the committal stage and is thus entitled to the full one-third discount (see HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 (per Lunn VP (as he then was) at paragraph 211).

The overall sentence should therefore be reduced from the starting point adopted of 78 months to 52 months, namely 4 years 4 months.

With that in mind, I now proceed to determine the sentence that should be imposed on the individual counts separately.

Sentences Imposed

On Count 1, given that more than one type of dangerous drugs is involved and in view of the quantity of each of them, namely 42.71 grammes of ketamine and 21.37 grammes of cocaine, the appropriate starting point for that count is one of 78 months. This is calculated by again applying the combined approach and cross-checking the result produced by way of the three tests, namely the absurdity test (101 months), conversion test (78 months) and ratio test (83 months). Giving the full one-third discount, the sentence that is appropriate for this count is about 52 months.

On Count 2, trafficking in 1.52 grammes of ketamine would attract a starting point of 25 months on a pure arithmetic calculation. Again, allowing the full one-third discount for the early plea, the sentence appropriate for this count is about 16 months.

Taking into account the totality principle, I order that both sentences, namely 52 months on Count 1 and 16 months on Count 2, be served concurrently. The resulting sentence is thus one of 52 months’ imprisonment, namely 4 years and 4 months. This is the sentence I impose.