HKSAR v. Cheng Shu Fan
Read the full judgment text of DCCC 689/2020 on BabelCite. This District Court judgment.
1. The Defendant pleads guilty to a charge of trafficking in dangerous drugs.
Cites 5 cases
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DCCC 689/2020 [2020] HKDC 1068 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO.689 OF 2020 ________________________
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________________________ Reasons for Sentence ________________________ Charges 1.The Defendant pleads guilty to a charge of trafficking in dangerous drugs. Facts 2.At around 3:06 p.m. on 27 March 2020, while PC18331 ("PWl") was conducting an anti-narcotics operation with his teammates in plainclothes near Choi Wan Shopping Centre, Choi Wan (I) Estate, 45 Clear Water Bay Road, Wong Tai Sin, Kowloon, he saw the Defendant outside Shop Nos. B106-B106A, Choi Wan Shopping Centre, tightly clenching his left fist and looking around furtively. Suspecting that the Defendant was in possession of dangerous drug, he and his teammates intercepted him. 3.Upon search at the scene, one plastic bag containing 0.63 grammes of a solid containing 0.52 grammes of ketamine ("El") was found in the Defendant's left hand. 4.Upon further search at the scene, one black plastic bag, containing the following items, was found at the waistband of the Defendant's trousers: -
5.In summary, the total amount and estimated value of the dangerous drugs in question are as follows: -
6.At around 3:28 p.m., the Defendant was taken to Wong Tai Sin Police Station. Upon body search, cash of HK$6,026 and an iPhone were found on him. 7.Upon house search of the Defendant's home at Flat B, 6th Floor, King's Building, Nos. 293-293B Prince Edward Road West, no drug paraphernalia was found. 8.At all material times, the Defendant was in possession of E1 to E9 for the purpose of trafficking. Mitigation 9.The Defendant is now 17 years of age, F. 6 student. He was 16 at the time of the offence. He has a clear record. His father is 74 years of age, hard of walking due to spinal problems. His mother works part-time in a beauty parlour. He is not and was not a drug addict. With a view to lightening her financial burden, he was led by bad peers to commit the present offence. 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 4.22 grammes of cocaine here. I accept the starting point suggested by defence as 39 months. 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 9.51 grammes of ketamine here. I accept the starting point suggested by defence as 46 months. 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 4.91 grammes of ICE here. I accept the starting point suggested by defence as 59 months. 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. Absurdity Test 14.Under the Absurdity Test, the whole quantity of all drugs seized (i.e., 18.64 grammes) is assumed to be the same drug. If we take it as 18.64 grammes of cocaine , it will mean a starting point, as suggested by the defence, of 68 months. If we take it as 18.64 grammes of ketamine , it will mean a starting point, as suggested by defence, of 53 months. If we take it as 18.64 grammes of ICE , the starting point, as suggested by defence, will be 91 months. 15.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, it will be absurd if the sentence exceeds 89 months. Conversion Test 16.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 39 months for 4.22 gramme of cocaine can tally with “1.2 grammes” of ICE whereas 46 months for 9.51 grammes of ketamine can tally with “3.08 grammes” of ICE. Adding up the drugs seized, i.e., “4.91 grammes of ICE”, ‘1.63 grammes of ICE” (after converting cocaine to ICE), “3.08 grammes of ICE” (after converting cocaine to ICE), we have “9.11 grammes” of ICE here. For 9.11 grammes of ICE, the starting point will be “82 months”. Ratio Test 17.Under the Ratio Test, 4.22 grammes of cocaine over 18.64 grammes of total quantity of drugs seized is 22.6%. If all drugs seized are to be cocaine, the sentence (calculated hereinabove under the Absurdity Test) is 69 months. As it goes, 22.6% of 68 months is “15 months”. 18.Next, 9.51 grammes of ketamine over 18.64 grammes of total quantity of drugs seized is 51%. If all drugs seized are to be ketamine, the sentence (calculated hereinabove under the Absurdity Test) is 53 months. As it goes, 51% of 53 months is “27 months”. 19.Finally, 4.91 grammes of ICE over 18.64 grammes of total quantity of drugs seized is 26.3%. If all drugs seized are to be ICE, the sentence (calculated hereinabove under the Absurdity Test) is 91 months. As it goes, 26.3% of 91 months is “24 months”. 20.The total sentence is arrived at by adding up all 3 parts: 15 months + 27 months + 24 months = 66 months. Results of the Cross-checking 21.The quantity of ICE seized is 4.91 grammes, the most potent drug here, alone pitching at a starting point of 59 months. It has to be adjusted upwards to take into account the cocaine and the ketamine seized. The Absurdity Test indicates that it cannot be lower than 53 months (if all is ketamine) or exceed 91 months (if all is ICE). The Conversion Test points to 82 months. The Ratio Test points to 66 months. Other considerations 22.Apart from the strict mathematical approach, the Court shall be aware of 2 possible aggravating factors for trafficking in cocktail drugs. First, a wider market is allowed (HKSAR v Yim Hung Lui Ricky CACC 266/2011). Second, expert evidence indicates mixed use of ICE and ketamine poses a greater harm to the abuser than either taken alone (HKSAR v Cheung Kwok Leung Lowence [2003] 3 HKLRD 542). Sentencing this Defendant 23.I consider a starting point of 66 months after the cross-checking. It shall be aggravated by involving cocktail drugs and, in particular, ketamine and ICE together. I take a starting point of 72 months. There is a one-third discount for the plea of guilty. He was only 16 then, not a drug addict and had a clear record. It is plausible that he had been ill-influenced by others to commit the present offence. I further reduce his sentence by 6 months. His sentence is 42 months.
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Cases cited in this judgment