COURT: The defendant, Luk Kuong-chon, faced two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded guilty to both charges before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
Admitted Facts
On 25 July 2019, the police conducted an anti-narcotics operation and laid ambush in the vicinity of the 19th floor of Wang Yiu House, Wang Tau Hom Estate. The defendant was seen leaving Room 1908 and he was intercepted by the police for inquiries and search.
The defendant ignored the police and entered the lift followed by the police. The defendant put up a struggle in the lift when the police repeated their request.
Subsequently, the defendant was subdued and upon a body search, a black plastic bag containing what was later confirmed to be 30.1 grammes of a solid containing 23.8 grammes of fluorodeschloroketamine (FDCK) was found inside the defendant’s trousers pocket. Under caution, the defendant started struggling again and asked the police to release him and that is the 1st count.
The defendant was taken back to Room 1908. The defendant’s wife and three daughters were inside. After the police produced a search warrant and explained that they would conduct a house search inside the premises, the defendant became emotional and started struggling again. He had to be subdued again.
As the police noticed one of the bedrooms inside the premises was locked and the defendant and his wife refused to open the door, the police entered the room by force. Inside the room, the following items were found:
(1) Four plastic bags containing what was later confirmed to be 182.2 grammes of a solid containing 140.3 grammes of FDCK and a spoon;
(2) two electronic scales;
(3) a bundle of transparent resealable plastic bags in different sizes;
(4) a vacuum sealer;
(5) one cigarette butt;
(6) two keys; and
(7) a pair of scissors.
The defendant was again arrested for the offence of trafficking in a dangerous drug and cautioned accordingly. Under caution, the defendant said that only he had the keys to the bedroom. He also claimed that all the drugs belonged to him and they had nothing to do with his wife. He later signed on a police notebook to confirm the accuracy and voluntariness of his post-recorded cautioned statement. That is the 2nd count.
During the two video-recorded interviews, the defendant stated among other things the following under caution. He stated that he was unemployed and did not have a stable income and when he worked as a tattoo artist occasionally. He alleged that he received the drugs seized from a friend called Ming Chai or Siu Ming in the morning of 25 July 2019. This male called him on his mobile phone and asked him to deliver the drugs to another person such that he could receive a monetary reward of $3,000 in return. He had not yet received the reward from his friend.
He admitted that he knew the packet found on his person was dangerous drug and claimed that he did not know the type of the drug. He claimed that at the time of the arrest, he was heading to Kowloon City Ferry Pier as his friend has instructed him to return the packet.
The defendant gave innocent explanations regarding the use of various items such as the electronic scales, resealable plastic bags, spoon and vacuum sealer found inside the locked bedroom.
Fingerprints and palm prints lifted from the door and the bed inside the locked room matched the defendant’s fingerprints and palm prints. Further, DNA found on the cigarette butt found inside the locked bedroom also matched the defendant’s DNA.
The defendant admitted and accepted that he had knowledge of all the dangerous drugs seized in this case and he was in possession of all the dangerous drugs seized for the purpose of unlawful trafficking. I should add here that I had confirmed with defence counsel that the denial that the electronic scales and other equipment that they were used for innocent explanations, that was incorrect, they were used to pack the dangerous drugs.
Background and Mitigation
According to the antecedents statement, the defendant was born in Macau in 1992 and moved to Hong Kong to live in 1995. He is married and has three daughters aged 3, 5 and 7 with his wife. The defendant was educated up to Form 3 level and was a tattoo artist earning around $10,000 per month. It was also said that he was not a drug abuser.
The defendant is not a first offender. He had appeared in court on five occasions and had a total of seven previous convictions. In 2009, he was convicted of one charge of possession of offensive weapon, one charge of conspiracy to assault occasioning actual bodily harm, and two charges of assault occasioning actual bodily harm. He was sentenced to a rehabilitation centre.
In 2013, he was sentenced to 19 days’ imprisonment for possession of prohibited weapon. In 2015, he was convicted of possession of dangerous drug and was sent to a drug addiction treatment centre. His last conviction of taking conveyance without authority and was sentenced to 4 months and 15 days’ imprisonment in 2019.
In mitigation, counsel Mr Chong Tin-chun submitted that the defendant was in fact an abuser of drug. Therefore the urine test taken when the defendant was admitted into the Correctional Services showed positive for cocaine. Mr Chong also informed me that defendant was originally employed work in a car service company but was laid off in 2019 and he then worked as a tattoo artist earning $20,000 per month from which he gave $15,000 to his wife for family expenses.
Mr Chong asked this court to treat the drug in question the same as ketamine for the purpose of sentencing as in the case of HKSAR v So Wan Cheung, that is High Court criminal case 364/2019, and upon Mr Chong’s calculation on a mathematical approach, trafficking 164.1 grammes of FDCK is about 7 years and 4 months and Mr Chong asked this court to adopt such a starting point and to give the defendant full discount.
I was also provided with a number of mitigation letters, one from the defendant’s father, one from the defendant’s wife, one from the manager of the car service company he used to work for and lastly one from a Deacon Peter Wong. I do not think there is any need to reiterate the contents of these letters, safe to say is that the defendant’s family informed me that even with his previous convictions, he was a responsible father and husband and that the defendant is remorseful for what he had done and they all asked for leniency on the defendant’s behalf.
Consideration for Sentence
Trafficking in a dangerous drug is a very serious offence and a person convicted of this offence on indictment is liable to life imprisonment and a fine of $5 million.
In the present case, both offences were committed on the same day and were closely linked and the proper approach was to have regard to the total amount of dangerous drugs in both counts to arrive at an overall starting point and there are a number of authorities in support of that. And the total amount of FDCK is 164.1 grammes.
Now, the drug involved here is FDCK. There are no sentencing guidelines for this particular drug and I was provided with an expert report from a Dr Chong Yeow-kuan who had very impressive CV. Dr Chong is currently employed by the Hospital Authority as an associate consultant at the Hospital Authority Toxicology Reference Laboratory. His daily work includes the detection of new psychoactive substances, NPS, and FDCK was such a NPS. And I accept that Dr Chong can give his expert opinion on FDCK.
Without going into detail of his report, suffice it to say that in his opinion, FDCK is similar to ketamine. Its potency is similar to or slightly higher than ketamine. The reported consumption ranged from 30 to 330 mg per session. The clinical toxicity profile of FDCK is similar to ketamine. There were no reported deaths due to FDCK consumption in the literature. FDCK is often detected concurrently with other drugs of abuse, most commonly with ketamine and in its other analogues. FDCK certainly has the potential of being addictive and the abuse potential is likely to be similar to ketamine.
One particular aspect of the abuse of FDCK is of concern to me. According to Dr Chong, reports from literature show that the dose used for FDCK that is 30 to 330 mg per session is slightly lower than the dose of ketamine with 250 to 500 mg in one-third of the users and another one-third using more than 1 gramme in a single session.
Patients locally reported that they believe the substance they consumed to be ketamine rather than a ketamine analogue. So Dr Chong and his team postulated that substitution of street ketamine with FDCK likely contributed to the consumption of FDCK in a significant portion of drug abusers in Hong Kong and it is likely that the user used the usual amount of street ketamine without realising that it had been substituted by FDCK and other ketamine analogues.
So while I treat FDCK the same as ketamine when considering the starting point with the quantity in question, I will adjust the starting point to take into account this particular aspect of the FDCK.
So in the case of Hii Siew Cheng, the Court of Appeal set down guidelines for the trafficking of ketamine. The total amount of FDCK involved is 164.1 grammes, so which falls under the category of 50 to 300 grammes with a starting point of 6 to 9 years. So on a mathematical calculation, 164.1 grammes would attract a starting point of around 7 years and 4 months.
Now, I will enhance this starting point by 2 months to take into account the real possibility that users took a higher amount of FDCK believing the substance was ketamine when the users were not made aware that the street ketamine they bought was not ketamine. So the starting point is therefore one of 7 years and 6 months and this is the starting point purely on the quantity of the drug.
The role played by the defendant is not just a courier. The fact that FDCK was found inside a locked bedroom with the usual packing paraphernalia such as resealing plastic bags, electronic scales, sealing machine and so on, clearly demonstrated the defendant was packaging the dangerous drug as well. While I would not enhance the starting point by virtue of the defendant’s previous convictions, bearing in mind the role he played, I am of the view that the starting point needs to be adjusted higher so a starting point of 7 years and 9 months is appropriate.
The defendant put up quite a lot of resistance in this case at the time of his arrest. However, he did plead guilty to the charge at the earliest available opportunity so I will give him the usual one-third discount.
A starting point of 7 years and 9 months equals to 93 months. So with a one-third discount, the sentence is one of 62 months which is equivalent to 5 years and 2 months’ imprisonment.
So for these offences of trafficking in dangerous drug, these two offences, the defendant is sentenced to 5 years and 2 months’ imprisonment. Each one is the same, 5 years and 2 months. Both sentences to run concurrently.