HKSAR v. So Kin Lung

HCCC 107/2020

[2020] HKCFI 2042

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 107 OF 2020

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Defendant pleaded guilty to two charges of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The defendant was seen by police officers to have alighted from a private car, walking away in a furtive manner. When the police tried to intercept him, he struggled and tried to flee. After he was subdued, he was searched and found to be in possession of 24 plastic bags of drugs, which he claimed were ‘Ice’ for his own consumption. A further search of the car which he had alighted from revealed another 38 packets of drugs and $29,950 cash. Under caution, he said that all the drugs seized were for his own consumption.

Upon analysis, the drugs were found to be 24.2 grammes of a crystalline solid containing 23.5 grammes of methamphetamine hydrochloride, that is, the subject matter of Charge 1 and 53.4 grammes of a solid containing 44.8 grammes of ketamine, and 2.57 grammes of a solid, containing 1.91 grammes of cocaine, the subject matter of Charge 2.

The retail value of all the drugs at that time were estimated to be around $45,717.

The defendant now admits that he was in possession of all the drugs for the purpose of trafficking at the material time.

By way of mitigation, I was told that he is now aged 24 and he has a clear record. He was unemployed at the time of his arrest.

In sentencing the defendant I have taken into account the nature of the offence, the various kinds of drugs involved, sentencing authorities and tariff as well as mitigation.

When different parcels of drugs were found within proximity of time, the aggregate amount is relevant for the purpose of sentencing. In the present case, the total amount of all the drugs added up together in respect of the two charges is 70.21 grammes. Individually, in relation to the ‘Ice’, the 23.5 grammes falls within the 10 to 70 grammes, that is, 7 to 11 years bracket, which calls for a starting point of 94.8 months. In relation to the 44.8 grammes of ketamine, they fall within the 10 to 50 grammes, that is, 4 to 6 years bracket, calling for a starting point of 69 months. And in relation to the 1.91 grammes of cocaine, it falls within the up to 10 grammes, that is, 2 to 5 years bracket, with a starting point of about 27.6 months.

The most potent drug in the present case is ‘Ice’. I am of the view that a combined approach is called for. As said above, 23.5 grammes of ‘Ice’ would attract a 94.8 months starting point. In determining by how much the starting point would be increased, taking into account the quantity of the other drugs, the various tests in the case of Chan Yuk Leong are examined.

Firstly, by the absurdity test, that is, assuming the entire quantity of drugs, ie, 70.21 grammes are all ‘Ice’, that would be within the 70 to 300 grammes, 11 to 15 years bracket, then the starting point should be around 11 years.

With a conversion test here 69 months starting point for ketamine and 27.6 months for cocaine, that is a total of 96.6 months can be converted into 25.5 grammes equivalent of ‘Ice’. And that is added to the 23.5 grammes of ‘Ice’ in the 1st charge. A total of 49 grammes of ‘Ice’ would attract a starting point of 115.2 months.

And thirdly is the ratio test. The total weight of narcotics being 70.21 grammes, with ‘Ice’ taking up 0.33 and ketamine taking up 0.64, cocaine taking up 0.03. Then assuming 70.21 grammes of single drug of ‘Ice’ will attract a starting point of 132.45 months, with a ratio of 0.33 result in a sentence of 43.58 months. Then assuming 70.21 grammes of single drug of ketamine will result in a starting point of 75 months. For the ratio of 0.64 result in a sentence of 48 months. Then thirdly, assuming 70.21 grammes of single drug of cocaine would attract a starting point of 103 months with a ratio of 0.03 a sentence of 3.09 months. So with all those added together would be 94.67 months starting point.

Taking into account all these, I am of the view that the conversion test is the most reasonable and realistic approach in the present case. Obviously there is still an aggravating feature of trafficking in three different types of drugs which warrants a further upward adjustment to 120 months, that is, 10 years’ imprisonment, as the starting point. So I therefore adopt 10 years as the starting point for the two trafficking charges. Taking into account his timely plea, he is entitled to one-third discount which result in an overall sentence of 80 months, apportioned into the two charges as follows:

Charge 1, 5 years, Charge 2, 5 years, with 20 months in respect of the Charge 2 sentence to run consecutively.