HKSAR v. Tsang Chi Wai

DCCC 323/2021

[2021] HKDC 1233

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 323 OF 2021

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of trafficking in dangerous drugs. The particulars show that the defendant trafficked in the drugs on 20 November 2020 in a private car in Yuen Long. The dangerous drugs in question are namely, in narcotic content 16.86 grammes of cocaine and 22.38 grammes of ketamine.

2.The facts are very simple.  The defendant was seen to be acting suspiciously by a police officer.  This led to a search of a vehicle that the defendant had boarded.  A search of the vehicle found in the driver side front door a quantity of drugs contained in what were a large number of plastic bags and those were the drugs found in the particulars of offence.  The defendant was arrested.  He later told the police the vehicle was lent to him by a friend a week before the arrest. 

3.The estimated street value of the dangerous drug seized is $34,930.20. 

4.The defendant admits that those drugs were possessed by him and were possessed for the purpose of unlawful trafficking in them.  The defendant’s antecedents statement shows that he is now aged 38 years old.  He has a number of previous conviction relating to drugs, four for possession of dangerous drugs and a single similar count of trafficking in a dangerous drug relating back to 2012 when he received a sentence of 5 years’ imprisonment and leading to a release from custody on 14 September 2017. 

5.The defendant’s background shows in fact he is now 39 years old, a married man, has a son who is 4 years old living in Yuen Long.  Defendant had worked as a technician in an engineering company and then as a part-time cross-border driver. 

6.I am informed the defendant has a condition of ankylosing spondylitis, which causes severe inflammations.  There is medical referral letters to support that that I have been referred to.  The defendant is, at this point, under treatment for this condition. 

7.The defendant asks, of course, for leniency on the sentencing of this offence whilst acknowledging he is a repeat offender and also that the drugs in this case involved a cocktail of drugs.  The defendant’s ambition is to quit drugs and lead a life where he does not drug traffic in future. 

8.Turning to the approach to sentence.  The court has to deal with this case where there are quantities of two kinds of drugs, ketamine and cocaine.  The approaches can be either to take an individual approach or the combined approach.  The individual approach would be to determine the sentence on each quantity of drug and simply add them together. That usually leads to an excessive sentence and would do in this case so the court should approach sentencing in this case using the combined approach. 

9.The individual drugs contained in this case are firstly ketamine in the quantity of 22.38 grammes.  The guideline sentence for that is contained in the case of Secretary for Justice v Hii Siew Cheng [2008] 3 HKC page 325.  In this case, the narcotic content being between 10 and 50 grammes would lead to a sentence of between 4 to 6 years’ imprisonment.  In this case, given the quantity of 22.38 grammes, it would be a sentence in the region of 4½ years’ imprisonment. 

10.For the cocaine, dealing with a quantity of 16.86 grammes, the cocaine is equivalent to heroin in terms of sentence. The guideline is contained in R v Lau Tak Ming [1990] 2 HKLRD at page 370.  Here we are dealing with, again, of a quantity of between 10 to 50 grammes where the sentence would range between 5 to 8 years’ imprisonment. Again, based on a mathematical calculation, the sentence for cocaine would be in the region of 5½ years’ imprisonment. 

11.The combined approach can be seen in the case of HKSAR v Islam S M Majharul, that is the judgment of the Court of Appeal 67/2019.  In that case, there is a seven-fold approach suggested by the Court of Appeal.  The approach would be to firstly determine the base drug to be used to calculate the starting point of the two drugs.  This requires determining which of the two drugs is the more or most serious drug, in terms of potency. It would appear in this case that the most or more serious drug in terms of potency would be the cocaine. 

12.Secondly, the court would then calculate the starting point according to the quantity of base drug in accordance with the relevant sentencing guideline.  I have already indicated that base point would be in the region of 5½ years’ imprisonment. 

13.Thirdly, then to determine by how much this starting point should be increased to allow for the quantity of the other drug.  It is said to be ultimately an exercise of sentencing discretion and that should be done by the following calculation.  Considering the quantity of the other drug and the relevant sentence according to that drug’s sentencing guideline and by reference to the starting point adopted for the base drug.  I have already indicated what that would be.  Secondly, conduct an overall comparison of the sentencing guidelines of the two drugs and their related ranges of sentence; examine the results of the absurdity test, the conversion test and the ratio test.  Finally, taking all these matters into account, calculate a reasonable and realistic increase to the starting point. 

14.Having done that, fourthly, determine the level of enhancement to the starting point for the aggravating factor that the trafficking involved two or more serious dangerous drugs.  Fifthly, determine any other enhancement to the starting point for any other aggravating factor or factors.  Sixthly,  take into account any mitigating factors; and finally, apply the totality principle. 

15.The other tests involved which would be the absurdity and ratio tests lead to a sentence in excess of 6 years’ imprisonment.  Having considered the general approach suggested in the Court of Appeal case, I consider that the overall starting point for sentence in relation to the drugs alone should be one of 6 years’ imprisonment, that is 72 months.  That is to be enhanced by the defendant’s previous conviction and the fact that this is a cocktail of drugs, that would lead to an enhanced sentence, I will enhance by 3 months for each of those factors leading to a final starting point for sentence of 6½ years’ imprisonment or 78 months’ imprisonment. 

16.After a deduction for the defendant’s plea of guilty, that would lead to a one-third deduction to 52 months’ imprisonment. That will be the sentence I will impose in this case, one of 52 months’ imprisonment.