HKSAR v. Lo Ka Wai

HCCC 60/2020

[2020] HKCFI 2806

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 60 OF 2020

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

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COURT: Defendant, on 9 April 2020, you pleaded guilty to two charges at the Eastern Magistracy to trafficking in a dangerous drug. The 1st charge relates to an amount of 4.01 grammes of a solid containing 2.08 grammes of cocaine. The 2nd charge relates to 106 grammes of a solid containing 92.7 grammes of ketamine. Both charges, you have admitted, were committed on 1 March 2019 at Shek Lei Estate, Kwai Chung, New Territories, in Hong Kong.

The 1st charge, the precise location was outside Shek Kwong House, and in relation to the 2nd charge, it was at your residence at Room 114, Shek Kwong House.

In the early hours of the morning at about half past midnight, a police officer was taking part in an anti-narcotics operation in the vicinity of Shek Kwong House. He spotted you acting furtively outside Shek Kwong House. Feeling suspicious, the officer intercepted you for inquiry. During the inquiry, the officer noted you kept clenching your left fist and therefore asked you to loosen it. He then found you were holding one resealable plastic bag wrapped in a tissue paper containing 20 plastic bags containing the drugs as stated in Charge 1.

At half past midnight, you were arrested and cautioned. You said that you planned to sell 10-odd bags of ‘Coke’ for money. A body search was conducted. A mobile phone and two keys were found in your left front pocket as well as $190 of cash in your wallet.

With your consent, a house search was conducted at your residence and at the corner of your bed was found one brown bag containing one potato chip bag containing the drugs as stated in Charge 2. Also found were two digital scales with batteries, one resealable plastic bag containing many small resealable plastic bags, a pair of scissors and a metal and plastic spoon.

Under caution, you said that those were perfume and you intended to sell them for quick money. There was no inhaling device found in the premises.

The estimated street value of the dangerous drugs seized from you was HK$83,118.

You admit that you possessed the dangerous drugs seized for the purpose of trafficking.

Defendant, you are 23 years of age. You have two previous convictions, one for theft in 2011 to which you were sentenced to probation for 2 years and a similar conviction for trafficking in dangerous drugs to which you were sentenced to 4 years and 2 months’ imprisonment in 2015.

You are single and educated up to Form 3. You lived with your parents at the abode where Charge 2 was committed and a younger brother who studies at university. Mr Luk, your counsel, has informed me that you were an assistant chef or cook prior to your arrest and you had been promoted and had an increase in salary from ten to sixteen thousand dollars. You further contributed approximately five to six thousand dollars to your family.

In regard to the present offence, he said since you have been in custody and remanded for the last year and a half, you have had deep reflection in your misdeeds.

I have received a letter from you dated 24 August setting out your reflection on your past peers and you intend to sever all communications with them. You understand now that most important to you is your family and you have deep regret for committing this offence.

I am informed by Mr Luk that the reason for you committing this offence was principally because of the greed and the fact that you could earn quick money.

The greatest mitigating factor in this case, defendant, is of course your early plea of guilty. For that you will receive the full one-third discount.

In this case, however, there is an aggravating factor. Approximately one year and four months after you were discharged from the Pik Uk Correctional Institute, you committed this exact same offence of trafficking in dangerous drugs. As this is an aggravating factor, I shall enhance your sentence.

Defendant, you were trafficking in two kinds of drugs. The 1st charge, you were trafficking in cocaine; and the 2nd charge, you were trafficking in ketamine. In sentencing you, I intend to take the combined approach and also the conversion approach and to sentence you as if all the drugs were converted to ketamine.

The relevant authorities for trafficking in cocaine is that of Lau Tak Ming and for trafficking in ketamine is that of Hii Siew Cheng. What I shall do is sentence you individually for each offence in following the correct guidelines for cocaine and ketamine, but in totality I will convert that into the whole -- into the drug of ketamine.

In Charge 1, defendant, you were trafficking in 2.08 grammes of cocaine. The appropriate starting point after trial for trafficking in that amount of cocaine, had you been convicted after trial, would be a sentence of 2 years and 6 months’ imprisonment.

Giving you the full one-third discount, you shall be sentenced to 1 year and 8 months’ imprisonment.

For Charge 2, you were trafficking in 92.7 grammes of ketamine. The appropriate starting point after trial would be one of 6 years and 6 months’ imprisonment. Giving you a one-third discount, you are sentenced on that charge to 4 years and 4 months’ imprisonment.

Now, taking the combined approach and converting the cocaine to ketamine would equal to amount of approximately 3 grammes of ketamine and adding 3 grammes of ketamine to the ketamine in Charge 2, that is 92.7 grammes, would equal a total amount of ketamine of 95.7 grammes of ketamine. In sentencing you for 95.7 grammes of ketamine, had you been convicted after trial, the starting point would be one of 6 years and 6 months’ imprisonment, and giving you the full one-third discount would be 4 years and 4 months’ imprisonment.

That will be your total sentence in totality. However, as I have mentioned to you, defendant, I consider there to be an aggravating factor here because you have committed a similar offence in a very short time and I shall enhance the sentence by 2 months. That means you shall be sentenced to a total term of imprisonment to 4 years and 6 months’ imprisonment.

Now, I therefore order 2 months of Charge 1 to run consecutive to that of Charge 2 and the remaining term in Charge 1 to run wholly concurrent, which would make a term of 4 years and 6 months’ imprisonment.