HKSAR v. Cheung Ho Nam

HCCC 13/2020

[2020] HKCFI 2183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 13 OF 2020

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

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COURT:

The accused was charged with one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. It is alleged that he, on the 22nd day of March 2019, at Nos. 464-466 Sai Yeung Choi Street North, Sham Shui Po, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs comprising a total narcotic quantity of 27.33 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’, 0.25 grammes of cocaine and 6.63 grammes of fluorodeschloroketamine. The accused pleaded guilty to the charge before the magistrate at the committal stage and was on 6 January this year 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 in support.

The facts giving rise to the offence may be summarized as follows. At around 9 pm on 22 March 2019, the accused was intercepted by police officers at the junction of Sai Yeung Choi Street and Wong Chuk Street in Sham Shui Po. Upon search by the officers at Nos. 464-466 Sai Yeung Choi Street North, two plastic bags containing 27 grammes of a crystalline solid containing 25.8 grammes of ‘Ice’ were found in the pocket of his jacket; two plastic bags containing 0.36 grammes of a solid containing 0.25 grammes of cocaine were found in the turban which he was wearing; in addition, one plastic bag containing nine plastic bags containing 7.82 grammes of a powder containing 6.63 grammes of fluorodeschloroketamine were found in his socks. Fluorodeschloroketamine is a compound structurally derived from 2-amino-2-phenyl-cyclo-hexanone.

Upon his arrest for the offence of trafficking in a dangerous drug, the accused stated under caution, “My mum owes someone money so I make money by trafficking dangerous drugs for people. I only wanted to make quick money to pay off my mum’s debt.”

At the time of his arrest, the accused was in possession of one mobile phone, cash of RMB15 and HK$7,049.

In a video-recorded interview subsequently conducted, the accused stated that he worked as a waiter on a casual basis. He wanted to earn quick money to pay off his mother’s gambling debt of HK$70,000 in Macau. He became acquainted with a person in Lan Kwai Fong who told him that there was a way to make quick money. On 22 March 2019, on the instruction of that person, he collected a bag of drugs from a female at Fu Yan Street, Kwun Tong around 6 pm. Later at around 8 to 9 pm, he was instructed to go to Sham Shui Po to distribute the goods to customers. He arrived at the location with the drugs and was arrested by the police. The accused confirmed that the mobile phone found on him had been used to receive instructions in the present case, whereas the cash found was unrelated. The accused further stated that he had never taken drugs.

In March 2019, the estimated retail value of the ‘Ice’ seized was HK$15,725, and HK$344 for the cocaine seized. The average retail price for fluorodeschloroketamine was unknown to the police. The total estimated retail value for the whole batch of drugs was over HK$16,069.

According to Dr Tony Mak, a consultant pathologist of the Hospital Authority, fluorodeschloroketamine is a new psychoactive substance. Its potency is similar to, or slightly higher than, ketamine with slower onset of actions. The physical, psychological and clinical effects of fluorodeschloroketamine are comparable to that of ketamine. It certainly has the potential for being abused, and has been used by local abusers since 2019.

The accused now admits that at the material time, he was trafficking in the dangerous drugs seized in this case.

The accused is 22 years of age with a clear criminal record. He is single and had received education up to Form 6 level in Hong Kong. Before his arrest, he was 20 years old and worked as a waiter in pubs and restaurants on a casual basis, earning about HK$18,000 per month. He is not an abuser of dangerous drugs.

Mr David Chu, counsel for the accused, submitted a written skeleton for mitigation. In the skeleton submissions, he stated that the accused was tempted by the urge of earning quick and easy money by committing the present offence so that he could help his mother to repay a gambling debt of HK$70,000. Counsel informed the court that the accused came from a broken family. Both his mother and his stepfather were pathological gamblers, causing deep financial trouble to the family. After finishing Form 6 studies, the accused had to borrow money from financial institution and started to work as a waiter to alleviate the financial burden of the family.

When the accused was 20 years old, his mother got divorced but she continued to incur gambling debt. The accused decided to work as an insurance agent so that he could earn more money for the repayment. To achieve this purpose, he stopped work to prepare for examinations that would qualify him as a licensed insurance agent and came into financial difficulties. As a result, he was used as a courier to commit the present offence.

Today, in mitigation, counsel also submitted one letter written by the accused, one letter written by his mother and a notice of repayment issued by the Promise (Hong Kong) Company Limited. In her letter, the accused’s mother stated that the accused had all along worked hard to help to relieve the financial burden of the family since Form 5. She said that her ex-husband was a gambler who ignored both her and the accused in the family. In August 2018, she left her ex-husband together with the accused and is now living on CSSA payments. His mother is in court today to show support to the accused, and she urged the court to pass a sentence as lenient as possible so that he can return to the family as soon as possible.

In his letter to this court, the accused expressed his remorse and that he is willing to become a law-abiding citizen in future. He stated that his former employer was very supportive and he would provide a job for the accused when the accused is released in future. He also mentioned about his family background which is in line or consistent with that stated by counsel in the written skeleton. According to the notice of repayment issued by the Promise (Hong Kong) Company Limited dated 29 June this year, the accused had an outstanding debt of HK$141,991. Counsel informed the court that to a large extent of this amount were borrowed with a view to relieve his mother’s financial debt.

Counsel urged this court to take into account the genuine remorse indicated by the early plea of the accused and the saving of court’s time. Counsel urged this court to grant the full one-third discount to the accused in his sentence. Having regard to the mathematical calculation for the types of drugs involved and the totality principle, counsel submitted that the appropriate starting point would be 8 years and 2.5 months’ imprisonment after trial.

In sentencing, I have considered the whole circumstances of the case including its nature and facts, in particular the type and quantity of the drugs involved, the background of the accused and the mitigation put forward on his behalf.

The accused had trafficked in three types of dangerous drugs, namely ‘Ice’, cocaine and fluorodeschloroketamine. For the purpose of sentencing, I will treat fluorodeschloroketamine the same as ketamine.

According to the guidelines in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, for trafficking in 10 to 70 grammes of ‘Ice’, the sentence should range from 7 to 11 years’ imprisonment after trial. For sentence involving trafficking in cocaine, it has been held that the guidelines laid down for heroin should be applied. In the case of R v Lau Tak Ming [1990] 2 HKLR 370, the Court of Appeal held that trafficking in heroin where the narcotic content is up to 10 grammes, a sentence between 2 and 5 years’ imprisonment should be imposed after trial. The Court of Appeal held in the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 that trafficking in ketamine where the narcotic content ranged from over 1 gramme to 10 grammes, the sentence should range from 4 to 6 years’ imprisonment after trial.

On the above sentencing guidelines, the starting point for trafficking in 27.33 grammes of ‘Ice’ narcotic is about 8 years and 2 months’ imprisonment. The starting point for trafficking in 0.25 gramme of cocaine narcotic is about 27 days, and 6.63 grammes of ketamine narcotic corresponds to a starting point of about 3 years 3 months’ imprisonment.

To sentence the accused on the individual approach would produce a sentence of 12 years and 27 days’ imprisonment which would be too high and does not properly reflect the justice of the case.

To achieve a reasonable and realistic sentence, I will adopt the combined approach which involves upward adjustment from the starting point of the base drug. In computing the appropriate sentence, I have had regard to the principles enunciated by the Court of Appeal in the cases of HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542, HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Chan Yuk Leong, CACC 318/2013 and HKSAR v Islam Majharul [2020] HKCA 300, CACC 67/2019.

In the present case, ‘Ice’ is the more serious drug in terms of its potency and sentencing tariff. I will use ‘Ice’ as the base drug in the calculation. As stated above, the starting point for trafficking in 27.33 grammes of ‘Ice’ narcotic is 8 years 2 months’ imprisonment. In determining the upward adjustment for the remaining cocaine and ketamine narcotics, I examine the overall starting point by checking it against the absurdity test, the conversion test and the ratio test.

Under the absurdity test, the overall starting point would be about 8 years 7 months’ imprisonment. Under the conversion test, the overall starting point based on the ‘Ice’ sentencing guidelines is about 8 years 3 months’ imprisonment, and based on the ketamine sentencing guidelines would be 8 years 10 months’ imprisonment. The overall starting point based on the ratio test is about 7 years 11 months’ imprisonment.

Taking all these matters into account, I consider it fair to make an upward adjustment of 1 month, resulting in an overall starting point of 8 years 3 months’ imprisonment, that is, 99 months.

In the present case, different types of drugs were seized at the same time, even though separately packed and not in a prepared mixture. Having regard to the two possible aggravating features, namely: one, the ability of the trafficker to cater to a wider market; and two, the effect on users of combination of dangerous drugs, I further enhance the starting point by 3 months to 8½ years, that is, 102 months.

The accused pleaded guilty at the earliest opportunity. He is entitled to the full one-third discount of his sentence. Having considered the whole circumstances including his personal circumstances and the matters put forward in mitigation, I consider that one-third is the extent of discount he is entitled to in the present case. The final sentence is one of 5 years 8 months’ imprisonment, that is, 68 months.

The accused, for the matters I have mentioned, I sentence you to an imprisonment term of 5 years and 8 months.