HKSAR v. Law Fong Leong

DCCC 184/2020

[2020] HKDC 971

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.184 OF 2020

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Reasons for Sentence

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Charges

1.The Defendant pleads guilty to trafficking in dangerous drugs (Charge 1) and possession of Part I Poison (Charge 2).

Facts

2.At around 2:33 p.m. on 15 January 2020, PC 18868 (“PW1”) and his teammates were on an anti-narcotics operation at Tam Kon Shan Road, Tsing Yi, New Territories, in Hong Kong.  PW1 saw a private car originally parked on the opposite lane outside Tam Kon Shan Road (I) Public Toilet (“Public Toilet”) turning around and stopping outside the Public Toilet with its hazard warning lights on.  The Defendant got off from the driver seat of the car and walked into the Public Toilet.  There was no one inside the car.

3.The Defendant was intercepted as he got out from the Public Toilet and approached the car.  PW1 searched him and found inside the cross-body bag carried by him one transparent resealable plastic bag containing 0.32 gramme of a solid containing 0.26 gramme of ketamine.

He was then arrested for trafficking in a dangerous drug. Under caution, he stated that the drugs were for self-consumption.

4.The car was searched and the following items were found:-

(a)  Two transparent resealable plastic bags containing a total of 13.5 grammes of a solid containing 7.31 grammes of ketamine, inside the armrest storage compartment of the door next to the driver seat;

(b)  Two letters bearing the Defendant’s name and address, inside the lower storage compartment of the door next to the driver seat;

(c)  One clutch bag between the driver seat and the door next to the driver seat containing items (d) – (g) below;

(d)  One transparent resealable plastic bag containing 6 smaller transparent resealable plastic bags containing a total of 8.05 grammes of a crystalline solid containing 8.00 grammes of methamphetamine hydrochloride (“ICE”);

(e)  8 transparent resealable plastic bags containing a total of 1.24 grammes of a solid containing 0.55 grammes of cocaine and 0.18 grammes of ketamine;

(f)  One transparent resealable plastic bag containing 4 foilpacks containing a total of 40 tablets containing clozapine;

(g)  One transparent resealable plastic bag containing 58 empty transparent resealable plastic bags;

(h)  One electronic scale inside the storage compartment between the front car seats; and

(i)  One bag sealer inside the storage compartment between the front car seats.

5.He had one mobile phone with two SIM cards and cash of HK$900 on him at the time.  After arrest and caution, he stated that the drugs were for self-consumption only.

6.In a subsequent video-recorded interview, the Defendant stated the following under caution:-

(a)  The drugs seized were ketamine, ICE, cocaine, and nimetazepam (五仔) and they were all for self-consumption;

(b)  He bought the drugs from an unknown male at Sin Tat Plaza in Mong Kok about two months ago. He paid HK$500 for each packet of ketamine, HK$800 for each packet of ICE, HK$300 for each packet of cocaine and HK$500 for each foilpack of nimetazepam;

(c)  He would consume the ketamine by inhaling, the ICE with an ICE bottle, the cocaine by smoking it in cigarettes and the tablets by placing them under his tongue;

(d)  The electronic scale belonged to him and he used it to weigh the drugs for his own consumption. He would put about 0.7 gramme of drugs into one of the empty resealable plastic bags for self-consumption each time;

(e)  The bag sealer belonged to him and he used it to seal plastic bags;

(f)  He rented the car from the owner of a garage at HK$6,800 per month about a month ago. He was the only driver of the car; and

(g)  He was a casual transport worker, earning about a few thousand dollars a week.

7.The estimated street value of the drugs seized was around HK$12,116.

8.At the material times:-

(a)  The Defendant was in possession of the drugs seized for the purpose of unlawful trafficking (Charge 1); and

(b)  The Defendant had in his possession the 40 tablets containing clozapine which were Part I Poisons (Charge 2).

Mitigation

9.The Defendant is 32 years of age.  He has a girlfriend and a daughter aged 2 years.  He was out of work due to the protests.  He committed the present offence to make more money.  He had one record for possession of dangerous drugs (fined in 2007) and one record for trafficking in dangerous drugs (sentenced in 2010 to 2 years 6 months). 

Sentencing guidelines

10.The sentencing guidelines for trafficking in cocaine indicate a starting point of 2 – 5 years for up to 10 grammes (R v Lau Tak-ming [1990] 2 HKLRD 370). We have 0.55 gramme of cocaine here.  Ms. Lam suggests a starting point of 18 months, which is acceptable to me.   

11.The sentencing guidelines for trafficking in ketamine indicate a starting point of 2 – 4 years for 1 – 10 grammes (Secretary for Justice v Hii Siew-cheng [2009] 1 HKLRD 1).  We have 7.75 grammes[1] of ketamine here.  Ms. Lam suggests a starting point of 41.93 months, which is acceptable to me.

12.The sentencing guidelines for trafficking in ICE indicate a starting point of 3 – 7 years for up to 10 grammes (HKSAR v Tam Yi-chun [2014] 3 HKLRD 691).  We have 8 grammes of ICE here.  Ms. Lam suggests a starting point of 73.44 months, which is acceptable to me.   

13.According to HKSAR v Chan Yuk Leong [2014] HKCU 889, where cocktail drugs are involved, the Court has to cross-check the sentence by three tests (ie Absurdity Test, Conversion Test, and Ratio Test) so that the ultimate sentence will be within range. 

14.Ms. Lam in her written mitigation has suggested various starting points and applied the three tests.  I agree with her suggestion and her application.   

Absurdity Test

15.Under the Absurdity Test, the whole quantity of all drugs seized is assumed to be the same drug. If we take it as cocaine, 16.3 grammes of cocaine will mean a starting point of 65.54 months. If we take it as ketamine, 16.3 grammes of ketamine will mean a starting point of 51.7 months. If we take it as ICE, 16.3 grammes of ICE will mean a starting point of 88.7 months. These are starting points suggested by Ms. Lam. I find these acceptable.

16.We can immediately see two features.  First, ICE is the most potent drug (i.e., sentence wise due to its impact on the present sentence) among the drugs seized here.  Second, the sentence cannot exceed 88.7 months. 

Conversion Test

17.Under the Conversion Test, we try to convert the quantity of each drug seized to the quantity of the most potent drug, i.e., ICE.  The same sentence of 18 months for 0.55 gramme of cocaine can tally with “0.5 gramme” of ICE whereas 41.93 months for 7.75 grammes of ketamine can tally with “2 grammes” of ICE.  Adding up the drugs seized, i.e., “8 grammes of ICE”, ‘0.5 gramme of ICE” (after converting cocaine to ICE), “2 grammes of ICE” (after converting cocaine to ICE), we have “10.5 grammes” of ICE here.  For 10.5 grammes of ICE, the starting point is “84.38 months”. 

Ratio Test

18.Under the Ratio Test, 0.55 gramme of cocaine over 16.3 grammes of total quantity of drugs seized is 3.4%. If all drugs seized are to be cocaine, the sentence (calculated hereinabove under the Absurdity Test) is 65.54 months. As it goes, 3.4% of 65.54 months is “2.22 months”.

Next, 7.75 grammes of ketamine over 16.3 grammes of total quantity of drugs seized is 47.6%[2]. If all drugs seized are to be ketamine, the sentence (calculated hereinabove under the Absurdity Test) is 51.7 months. As it goes, 47.5% of 51.7 months is “24.6 months”.

19.Finally, 8 grammes of ICE over 16.3 grammes of total quantity of drugs seized is 49%. If all drugs seized are to be ICE, the sentence (calculated hereinabove under the Absurdity Test) is 88.7 months.  As it goes, 49% of 88.7 months is “43.46 months”.

20.The total sentence is arrived at by adding up all 3 parts: 2.22 months + 24.6 months + 43.46 months = 70.28 months. 

Conclusion

21.The quantity of ICE seized is 8 grammes, the most potent drug here, alone pitching at a starting point of 73.44 months.  It has to be adjusted upwards to take into account the cocaine and the ketamine seized.  The Absurdity Test indicates that it cannot exceed 88.7 months.  The Conversion Test indicates that it cannot exceed 84.38 months.  Therefore, we can 73.44 months up to 84.38 months.  I take the near middle figure of 78 months as the starting point for Charge 1. 

Sentencing this Defendant

22.After the one-third discount for the plea of guilty, the sentence is 52 months for Charge 1.

23.I take 6 weeks as the starting point for Charge 2.  After the one-third discount, the sentence is 4 weeks.  It shall be concurrent with Charge 1.