HKSAR v. Lui Cheung Chi

HCCC 381/2019

[2020] HKCFI 905

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 381 OF 2019

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

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COURT: The Charge and Plea

The defendant, Lui Cheung-chi, pleaded guilty to one charge of trafficking in dangerous drugs and admitted the facts pertaining to the charge in the court below. He confirmed his guilty plea and admissions of the facts before me today. I convict him as charged on his own plea and admissions of the facts.

The charge which took place on 25 January 2019 at Choi Ming Street, Tiu Keng Leng, New Territories concerned 0.76 gramme of a solid containing 0.63 gramme of cocaine, 20.89 grammes of a solid containing 17.78 grammes of ketamine and 63.38 grammes of crystalline solid containing 63.38 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.

The Facts

The facts are set out in detail in the Summary of Facts dated 8 November 2019. Briefly stated, the defendant was found acting furtively by some police officers in the early hours on the offence date outside a taxi stand near Choi Ming Court, Choi Ming Street, Tiu Keng Leng. He was intercepted and searched by the police officers. The police officers found inside a dark-coloured paper bag carried by the defendant the dangerous drugs particularised in the charge. The cocaine was contained in four plastic bags, the ketamine in 25 plastic bags, and the ‘Ice’ in nine plastic bags. The defendant was arrested.

A house search at the defendant’s residence was conducted and the police found a sealing machine and a box of transparent resealable plastic bags from the lower drawer of the defendant’s bed.

In a video-recorded interview, the defendant admitted, inter alia, that he had been approached to act as a drug courier and he would be remunerated upon successful delivery of the drugs.

The total estimated value of all the dangerous drugs seized was around $45,826.

Antecedent

The defendant is 21 years old and is single, locally born. He was educated up to Form 4. He worked as a part-time transportation and warehouse worker, earning $500 per day. Before his remand, he resided with his parents at a public housing unit. In year 2011, the defendant was convicted of one count of theft and was placed on probation for 15 months.

Mitigation

I am grateful to Mr Lai for his detailed written mitigation. Mr Lai draws my attention to the respective sentencing guidelines in HKSAR v Lau Tak Ming [1990] 2 HKLR 370, Secretary for Justice v Hii Siew Cheng & Another [2008] 3 HKC 323 and HKSAR v Tam Yi Chun [2014] 3 HKLR 691 for cocaine, ketamine and ‘Ice’.

Mr Lai also draws my attention to the case HKSAR v Yip Wai Yin & Another [2004] 3 HKC 367 and submits that if sentencing was approached on an individual basis, a total starting point of 17 years and 6 months would be adopted which is wholly disproportionate to the nature and quantity of the drugs found in this case.

Mr Lai urges me to adopt the combined approach in sentencing the defendant. He accepts for the three types of dangerous drugs involved, ‘Ice’ is the more or most potent drug and the tariff of ‘Ice’ should be used as the base for determining the appropriate starting point.

Mr Lai submits the following results would be yielded, applying the three means of cross-checking, that is, the absurdity test, the conversion test and the ratio test. The application of the absurdity test would result in a starting point of 11 years and 2.5 months; the conversion test, a starting point of 10 years and 10 months; the ratio test, a starting point of 10 years and 2 months.

Mr Lai accepts that the application of the ratio test would result in a starting point which is lower than the individual starting point for ‘Ice’ alone, that is 10 years and 6.7 months, if the individual approach were to be adopted. Mr Lai submits that the defendant should be given one-third reduction for his guilty plea which was tendered at the earliest opportunity. Mr Lai also submits some medical document which shows that the defendant’s father is not in good health, and he also places before me a mitigation letter written by the defendant in which the defendant expresses his remorse. The defendant also explains why he committed the offence. He did so in order to earn some money to improve the family life of his parents.

Consideration

In sentencing the defendant, I have taken into consideration the nature and quantities of the dangerous drugs involved, that the case involved trafficking of three types of dangerous drugs, the facts, the background information of the defendant and all the matters urged on the defendant’s behalf by Mr Lai and all the materials placed before me in mitigation.

I agree with Mr Lai that I should adopt the combined approach in the present case. Of the three types of dangerous drugs involved, ‘Ice’ is more potent than cocaine and ketamine, and I would use it as the base in the sentencing process. Given the quantity of the ‘Ice’ and applying the tariff in Tam Yi Chun, an initial starting point of 10½ years is appropriate. In my judgment, the presence of 17.78 grammes of ketamine does add to the overall criminality of the case and it calls for a higher starting point of 11 years. The ultimate starting point I adopt therefore is 11 years’ imprisonment.

The defendant is given one-third reduction for his timely plea which would bring his sentence down to 7 years and 4 months’ imprisonment. Apart from the guilty plea, there is no further mitigating factor that can be said on the defendant’s behalf. The health condition of the defendant’s father and the reasons behind the defendant’s committing the offence are not mitigating factors that can help the defendant in the sentencing process.

For the reasons given, I sentence the defendant to 7 years and 4 months’ imprisonment.