HKSAR v. Ho Kwun Chung

DCCC 334/2021

[2022] HKDC 80

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 334 OF 2021

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REASONS FOR SENTENCE

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1.Mr Ho faces two charges before me.

2.Charge 1 is one of Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on 27 August 2020, on a taxi bearing registration mark GB6698, outside No 32A Chi Kiang Street, To Kwa Wan, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 25.56 grammes of a solid containing 20.68 grammes of ketamine and 1.50 grammes of a solid containing 1.27 grammes of cocaine.

3.Charge 2 is one of Possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on 27 August 2020, on a taxi bearing registration mark GB6698, outside No 32A Chi Kiang Street, To Kwa Wan, Kowloon, in Hong Kong, had in his possession a dangerous drug, namely 0.28 gramme of cannabis in herbal form.

4.Mr Ho pleaded guilty to Charge 1 and not guilty to Charge 2. Prosecution asked that Charge 2 be left on court file not to proceeded with without the leave of this court or the Court of Appeal.  I so ordered.

Facts admitted by Mr Ho

5.On 27 August 2020 at around 2230 hours, in Chi Kiang Street, Tokwawan, a man was acting furtively and got into the front passenger seat of a taxi.  Mr Ho was in the driver’s seat.  They were each holding a wad of banknotes and were having some interactions.  A patrolling police constable intercepted them for inquiry.

6.Upon search, the following items were found inside the taxi:-

(a)  One white plastic bag containing 42 packets containing a total of 17.22 grammes of a solid containing 14.73 grammes of ketamine and one packet containing 0.14 gramme of a solid containing 0.12 gramme of cocaine (“Exhibit 3”)  (found inside the compartment between the driver’s seat and the front passenger seat);

(b)  One black plastic bag containing 15 packets containing a total of 6.08 grammes of a solid containing 5.27 grammes of ketamine (“Exhibit 5”)  and one yellow plastic bag containing 4 packets containing a total of 1.47 grammes of a solid containing traces of ketamine (“Exhibit 7”)  (found inside the compartment between the driver’s seat and the front passenger seat);

(c)  Two packets containing a total of 0.79 gramme of a solid containing 0.68 gramme of ketamine and one packet containing 0.16 gramme of a solid containing 0.13 gramme of cocaine (“Exhibit 9”)  (they were wrapped by a piece of tissue paper placed on the floor of the front passenger seat); and

(d)  Ten $500 banknotes (found underneath the carpet at the driver’s seat).

7.Upon enquiry, Mr Ho took out 8 packets containing a total of 1.20 grammes of a solid containing 1.02 grammes of cocaine (“Exhibit 1”)  from his left front trouser pocket.

8.Under caution, Mr Ho stated:-

(a)  The ketamine was for selling to others and the man in the white shirt paid for 2 packets;

(b)  The coke taken out from his trouser pocket was for his own consumption; and

(c)  The ketamine found inside the black and yellow plastic bags and under the carpet were for his own consumption.

9.At the time of arrest, other than the $5,000 mentioned above, Mr Ho possessed cash of $5,015.40 and RMB16.10.

10.The total estimated prices of the ketamine and cocaine found were $9,636 and $4,476 respectively.

11.Mr Ho now admits that he possessed Exhibits 1, 3, 5, 7 and 9 for the purpose of unlawful trafficking.

Criminal record

12.Mr Ho has one previous conviction of possession of dangerous drug in 2013 for which he was fined.

Antecedents

13.Mr Ho is aged 38 (37 at the time of the offence), educated to F5 level; he previously worked as a transportation driver and taxi driver.  Mr Ho is single and has one elder sister.  He was living with his divorced mother in Shatin.

Mitigation

14.Mr Jeff Ho of counsel (hereinafter “counsel”)  assigned by the Director of Legal Aid mitigated on behalf of Mr Ho.  The following is a summary of the mitigation submissions.

15.Since mid-2018, Mr Ho became a taxi driver earning about $18,000 a month, enough to support the family expenses.  However, since the outburst of Covid-19 in early 2020, his income dropped to less than half of previous level.  One day, when he was sharing his financial difficulties with a frequent customer, the latter induced him to sell dangerous drugs for quick profit. Foolishly, Mr Ho agreed and was caught on his first run.

16.Mr Ho was cooperative with the police.  He has only one previous for simple possession.  He pleaded guilty at an early stage and is entitled to the full 1/3 discount.

17.Mr Ho is not relying on self-consumption as a mitigating factor.

18.Treating the two types of drug separately and using the respective sentencing tariffs as guidelines, counsel submitted that for trafficking in 1.27 grammes of cocaine, the starting point would be 28.6 months; and for trafficking in 20.68 grammes of ketamine, the starting point would be 54.4 months.

19.Counsel worked through the calculations and arrived at the following starting point figures:-

(a)  If the individual approach was adopted, the overall starting point would be 83 months which counsel submitted was excessive;

(b)  Absurdity test (cocaine)  produces a result of 70.75 months which counsel submitted was excessive; and absurdity test (ketamine)  produces a result of 55.17 months;

(c)  Conversion test (ketamine)  produces a result of 56.04 months; and conversion test (cocaine)  produces a result of 58.95 months; and

(d)  Ratio test produces a result of 56.07 months.

20.Counsel submitted that it is appropriate to adopt 54.4 months for ketamine as the base sentence and adjust it upward for the cocaine and that the appropriate starting point would be in the range between 55 and 59 months.

Sentence

21.Trafficking in a dangerous drug is a serious offence.  It is made more serious when the drugs involved are a combination of different types of drug.  In HKSAR v Chan Yuk Leong, CACC 318/2013, the Court of Appeal re-emphasized the two aggravating factors that a sentencing court should take note of in this type of case, namely (1)  the ability of the trafficker to cater to a wider market; and (2)  the effect on users of combinations of dangerous drugs.  As regards (2), I note in this case that the two types of drug were not placed in the same packet though a small percentage of cocaine was placed in close proximity to packets of ketamine.

22.I have borne in mind the sentencing tariffs laid down in R v Lau Tak Ming [1990] 2 HKLR 370 for trafficking in cocaine and Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 for trafficking in ketamine.

23.I am satisfied that this case calls for the use of the combined approach rather than of the individual approach in terms of sentencing for the two different types of drug (HKSAR v Cheung Wai Man, CACC 258/2017 at para 46 considered).

24.I will accede to counsel’s submission and adopt 57 months as the overall starting point.  Mr Ho pleaded guilty in good time; I will give him the full 1/3 discount.  There is no other mitigating factor of weight to justify any further reduction in sentence.

(Mr Ho, please stand)

25.The sentence on Charge 1 is therefore 38 months’ imprisonment.