HKSAR v. Jim Man Chun

DCCC 32/2021

[2022] HKDC 106

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 32 OF 2021

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REASONS FOR SENTENCE

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1.Mr Jim pleaded guilty before me to one charge 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 1 June 2020, near Silverstrand Mart Bus Stop, Clear Water Bay Road, Hang Hau, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 5.41 grammes of a solid containing 3.37 grammes of cocaine and 12.0 grammes of a solid containing 9.28 grammes of ketamine.

Facts admitted by Mr Jim

2.On 1 June 2020, at about 11:12 pm, Mr Jim, the driver of an LGV, was stopped at a police road block on Clear Water Bay Road.  There was also a passenger on board.  Mr Jim avoided eye contact and kept his left fist clenched.  Those on board were asked to alight for a search.  While Mr Jim was alighting, his left fist released a white object which fell on the floor in front of the driver’s seat area.  The object was found to be a folded piece of tissue paper with one plastic bag containing 0.20 gramme of a solid containing 0.12 gramme of cocaine inside.

3.Upon search of the vehicle, the following items were found in the glove compartment in front of the front passenger seat:-

(a)  One plastic bag containing 26 plastic bags containing a total of 5.21 grammes of a solid containing 3.25 grammes of cocaine;

(b)  One plastic bag containing 16 plastic bags containing a total of 12.0 grammes of a solid containing 9.28 grammes of ketamine; and

(c)  3 empty plastic bags.

4.Also found on the vehicle were 2 mobile phones belonging to Mr Jim.

5.Mr Jim was found to have cash of $982 on his person.

6.Mr Jim was arrested.  House search revealed nothing.

7.The vehicle was found to belong to one Chong who lent it to one Ngai who then onward lent it to Mr Jim with Chong’s permission.

8.The estimated value of all drugs came to $13,461.

9.Mr Jim now admits he possessed all of the drugs for the purpose of unlawful trafficking.

Criminal record

10.Mr Jim has a clear record.

Antecedents

11.Mr Jim is aged 21 (19 at the time of the offence).  He completed F3 without passing the exams.  At the time of arrest, he was working as a mechanical technician.  Mr Jim is single, resided with father and step-mother and an elder brother in public housing in Sau Mau Ping.

Mitigation

12.Mr Summly Lee of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Jim.  The following is a summary of the mitigation submissions.

13.Mr Jim indicated his guilty plea on 4 January 2022 thus averting a trial fixed for 26 January 2022.

14.Mr Jim’s parents were divorced when he was 2.  His mother left and his father became the sole bread winner.  Because of his father’s long working hours split between 2 jobs, Mr Jim was taken care of by a foster family until he started primary one.  Since then, Mr Jim and his elder brother were taken care of by a domestic helper under the same roof as his father.  Since his father married his step-mother when he was in primary 6, he was taken good care of by his step-mother.  His biological mother returned to Mr Jim when the latter was 10 and they have kept a good relationship since then.  His natural parents are in court to give their support.

15.Mr Jim left school after completing F3.  He then worked in different jobs on full-time basis.  Since mid-2018, Mr Jim had been working as a technician earning about $16,000 a month until he was arrested.  However, he also started his own business as a part-time delivery driver.  He rented an LGV for that purpose and earned extra income as a result.

16.With the improvement in financial status, he started mingling with bad elements including the passenger Yu stopped by the police.  In mid-May 2020, Yu asked him to deliver illicit drugs.  Mr Jim finally acceded but did it not for money but only as a sign of brotherhood.  Nonetheless, Yu gave him a tiny packet as a token of thanks ie the 0.12 gramme of cocaine Mr Jim kept in his fist.  Mr Jim claimed that this was for his self-consumption in his capacity as an entertainment user.  When pressed, Mr Lee on behalf of Mr Jim acknowledged this small amount is not a significant proportion anyway and he also confirmed that Mr Jim will not give evidence to support the claim.

17.Mr Jim’s plea of guilty shows his genuine remorse and regret.  He is determined to turn over a new leaf.  He is of clear record and is young; a lenient starting point is asked for.

18.Mr Lee referred to the sentencing guidelines for cocaine and ketamine, namely The Queen v Lau Tak Ming [1990] 2 HKLR 370 and Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 respectively.

19.Relying on these guidelines, he made the related calculations with the following results:-

(a)  For trafficking in the cocaine (3.37 g)  in this case, the arithmetic starting point is 36.13 months;

(b)  For trafficking in the ketamine (9.28 g)  in this case, the arithmetic starting point is 46.08 months;

(c)  The absurdity test (cocaine)  starting point is 62.39 months;

(d)  The conversion test (9.50 g of cocaine)  starting point is 58.20 months;

(e)  The conversion test (14.83 g of ketamine)  starting point is 50.90 months; and

(f)  The ratio test starting point is about 53 months.

20.Mr Lee submitted that the individual approach (adding (a)  to (b))  would result in a sentence that is excessive; that the more appropriate way in dealing with Mr Jim is the combined approach.

21.Mr Lee also referred to the case of HKSAR v Herry Jane Yusuph, CACC 93/2019, at lengths, to highlight the 6-step approach to sentencing summarized therein.

22.Mr Lee recognized that the plea was tendered late and he asked for 25% discount only.

23.Lastly, Mr Lee submitted a total of 5 mitigation letters all written in Chinese respectively by Mr Jim himself, his father, his step-mother, his elder-brother, and his biological mother.  The contents are generally that Mr Jim is regretful and will not re-offend; that a lenient sentence is asked for so that Mr Jim may turn over a new leaf sooner.

Sentence

24.I note from the urine test of Mr Jim supplied by the prosecution that he was tested negative for cocaine and other drugs only 3 days after arrest.

25.Trafficking in a dangerous drug is a serious offence.  It is made more serious when there were present a combination of two different types of drug. In HKSAR v Chan Yuk Leong, CACC 318/2013, the Court of Appeal re-emphasized the two aggravating factors of which a sentencing court should take note 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 that in this case the two types of drugs were not placed together in the same package although they were near each other.

26.I agree with the submission that this case calls for the use of the combined approach rather than the individual approach (HKSAR v Cheung Wai Man [2019] 1 HKLRD 817, para 46 considered).

27.In general, I agree to the calculations made by Mr Lee on behalf of Mr Jim.  I would simply add one calculation of my own, namely, the absurdity test (ketamine)  would give a starting point of 49.59 months.

28.Bearing in mind all the results of calculations, and the total number of plastic bags of drugs in this case, I am satisfied that an overall starting point of 54 months for trafficking in the two types of drug here would not be excessive and that is the figure I adopt for Mr Jim, subject to enhancement due to aggravating factors.

29.For the dual aggravating factors identified earlier, I will increase that starting point by 2 months to reach a final starting point of 56 months (see HKSAR v Islam SM Majharul [2020] 3 HKLRD 146, para 27(4)).  I am satisfied that this final figure is still some way from the absurdity test result for cocaine (ie the more potent drug)  in which result the said aggravating factors would not have been a factor.

30.Mr Jim pleaded guilty but his indication of plea was not at the earliest opportunity.  He indicated his plea about 3 weeks before the scheduled trial date.  By exercising my discretion, I will give him ¼ discount from the starting point.  Previous clear record and youth are not mitigating factors in this type of offence nor can I see any other grounds for reducing sentence. For the record, I do not accept that the small amount of cocaine kept in Mr Jim’s fist was for his self-consumption.  In any event, even it was for his self- consumption, because of the small amount involved, there would not have been much difference to the sentence anyway.

31.Finally, I am satisfied that the overall sentence is not going to be unfairly or unjustly crushing or oppressive to Mr Jim.

(Mr Jim, please stand)

32.Mr Jim shall go to prison for 42 months.