HKSAR v. Chung Ka Yan

HCCC 41/2020

[2020] HKCFI 2095

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 41 OF 2020

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

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COURT: Background and the Facts

On 6 April 2020, the defendant pleaded guilty in the Eastern Magistrates’ Courts to one charge of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. This morning, she confirmed her plea before me and accepted the Summary of Facts.

Briefly, it was agreed that in the night of 15 March 2019, the defendant was seen acting furtively at a road junction in Tsim Sha Tsui. As a result, she was intercepted for investigation and the drugs particularized in the charge, that is, 16.3 grammes of methamphetamine hydrochloride (‘Ice’); 2.3 grammes of cocaine; 10.37 grammes of fluorodeschloroketamine; and 0.57 gramme of nimetazepam, were found in the shoulder bag she was carrying and from inside her jacket pocket. The total estimated retail value of the drugs was about HK$15,000.

Mitigation and the Defendant’s Background

The defendant is now aged 35 and is divorced with one daughter. She received education up to secondary level and had a clear record before she committed the present offence. It was said that she worked as a chef, earning about HK$15,000 per month, at the time of the arrest.

I have before me letters written by the defendant herself, her boyfriend and the defendant’s family members, including her seriously ill mother, her elder brother, daughter and her in-laws. All spoke of the good nature of the defendant and how well she had treated them, and all regarded the defendant as a hardworking and responsible person who attaches great importance to her family. This morning, a letter written by the pastor paying regular visits to the correctional institutions was also given to me, in which it was stated that the defendant is truly remorseful and is determined to turn over a new leaf.

In mitigation, Ms Lee for the defendant urged upon me that a lenient sentence be passed given the defendant’s determination to start anew. Further, in the documents submitted to me, it would appear that in order to feed her drug habit and to make ends meet, the defendant had borrowed a total sum of about $700,000 from financial institutions. And since her custody, she has petitioned for bankruptcy. It was said that if not because of her drug problem and her wish to give her family a good living, the defendant would not have committed the offence.

Sentencing Considerations

In this case, fluorodeschloroketamine, a new psychoactive substance, is involved and there is, at present, no sentencing tariff in relation to this drug. However, the prosecution has put before me a statement from Dr Tony W L Mak, the Consultant Chemical Pathologist of the Hospital Authority Toxicology Reference Laboratory which laboratory specializes in the detection of new psychoactive substance. According to Dr Mak, fluorodeschloroketamine has potential for being abused and has been used by local substance abusers since 2019. Its potency is similar to, or slightly higher than, ketamine with slower onset of actions. Further, the physical, psychological and clinical effects of fluorodeschloroketamine are found to be comparable to those of ketamine.

Given the characteristics of this new drug, I consider that the sentencing tariffs for ketamine should apply. Ms Lee for the defendant neither took issue with the findings and opinions of Dr Mak nor the application of the ketamine guidelines to fluorodeschloroketamine.

In the circumstances, the tariffs for trafficking in ‘Ice’, cocaine and ketamine are applicable in this case and they were respectively laid down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, R v Lau Tak Ming & Ors [1990] 2 HKLR 370, AG v Rojas [1994] 2 HKCLR 69 and SJ v Hii Siew Cheng [2009] 1 HKLRD 1.

For 10 to 70 grammes of ‘Ice’, a term of imprisonment of 7 to 11 years is called for. For up to 10 grammes of cocaine, a term of 2 to 5 years is called for. Finally, for 10 to 50 grammes of ketamine, a term of 4 to 6 years is called for.

Since the charge to which the defendant pleaded guilty involved multiple drugs, there are two sentencing approaches, that is, the individual approach and the combined approach. See, for example, HKSAR v Ko Ka Hing [2009] 4 HKLRD 856.

In this case, having considered all the circumstances including that ‘Ice’ constituted the bulk of the drugs, I find it appropriate to adopt the combined approach. Moreover, in view of the negligible quantity of the nimetazepam involved, I am going to ignore it in the calculation of sentence.

Now, based purely on the narcotic contents, a global starting point of 7 years and 9 months would be appropriate and I have cross-checked this by applying the conversion test, the ratio test and the absurdity test which yielded a term of 8 years and 3 months as being an absurd sentence.

No doubt, there is an aggravating factor which I need to take into account and that is an enhancement to reflect the more serious nature of trafficking in different types of drugs. For example, see HKSAR v Chan Yuk Leong CACC 318/2013, 8 April 2014 unreported.

For this aggravating factor, I am going to enhance the sentence by 3 months. Therefore, the global starting point which I am going to adopt after enhancement is one of 8 years. This starting point could be described as lenient given the number and quantities of the drugs involved.

In relation to the mitigation advanced before me, while it is disheartening for the family to see the hitherto law-abiding and caring defendant going to prison, it remains a fact that drug trafficking is a serious offence which brings huge harm to the community. In the circumstances, the defendant’s clear record could not be of help in her mitigation.

The Sentence

As pointed out earlier, the defendant pleaded guilty at the committal stage. She would receive the full one‑third reduction for that. Other than her guilty plea, there is nothing in this case which would warrant any further reduction in sentence. 8 years, that is 96 months, reduced by one-third is a term of 64 months’ imprisonment. I therefore sentence the defendant to 64 months.