HKSAR v. Lee Kwok Wai

DCCC 916/2021

[2022] HKDC 808

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 916 OF 2021

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REASONS FOR SENTENCE

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Introduction

1.The defendant (D)  is convicted on his own plea of 1 Charge of “Trafficking in dangerous drugs”, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars of Offence stated that D, on 9 June 2021, at Room A, 4^th Floor, Sun Yan Hing Building, No 28 Yan Hing Street, Tai Po, unlawfully trafficked in dangerous drugs, namely, 15.02 grammes of a solid containing 13.6 grammes of cocaine, 1.21 grammes of a powder containing 1.05 grammes of ketamine, and 0.02 gramme of a solid containing cocaine and ketamine.

Facts of case

2.The facts of the case as admitted by D is simple and straight forward.  At about 2:10 pm on 9 June 2021 D was intercepted by a party of police officers at the 4^th Floor of the building as particularized in the Charge.  He was found to be in possession of 2 mobile phones and 6 keys. 2 of the keys could open the main gate and door to Room A on the same floor of the building. 

3.D was taken back to Room A for a house search.  The following items were found inside Room A:-

(a)  A notebook containing 0.02 grammes of a solid containing cocaine and ketamine;

(b)  A black metal box which could be unlocked by 2 of the keys seized from D containing:-

(i)  1 transparent re-sealable plastic bag containing 19 transparent re-sealable plastic bags containing a total of 4.32 grammes of a solid containing 3.88 grammes of cocaine;

(ii)  1 transparent re-sealable plastic bag containing 50 transparent re-sealable plastic bags containing a total of 10.7 grammes of a solid containing 9.72 grammes of cocaine; and

(iii)  1 transparent re-sealable plastic bag containing 3 transparent re-sealable plastic bags containing a total of 1.21 grammes of a powder containing 1.05 grammes of ketamine;

(c)  Cash HK$8,970;

(d)  3 bundles of empty transparent re-sealable plastic bags;

(e)  1 electronic scale; and

(f)  3 mobile phones.

4.In a video recorded interview subsequent to his arrest, D admitted under caution, inter alia, that he was the sole breadwinner of his family.  He became unemployed about 1 year ago.  He was persuaded by a friend nicknamed “Feijai” to traffick in dangerous drugs to earn quick money.  He used HK$20,000 of his saving to purchase the dangerous drugs concerned, re-packaged them and stored them in the black metal box.  He would place the electronic scale on top of the notebook and re-package the drugs using the re-sealable plastic bags, each bag ranging from 0.2 gramme to 0.4 gramme and sold them from HK$350 to $400 per bag.  Customers would contact him by phone and he would deliver the dangerous drugs to the customers in person.  He rented Room A at HK$5,000 per month and lived there on his own.  The cash seized was revenue from reselling the dangerous drugs.

5.The estimated street value of the dangerous drugs seized was about HK$18,558.

Background of D

6.D is 33 years old, born in the mainland on 24 August 1988.  According to his father, D came to Hong Kong to re-unite with his parents in 1999.  He is single and resides with his parents and an elder brother.  He completed Form 5 education in Hong Kong.  He used to work in a restaurant but it was closed down due to the Covid-19 pandemic.  He was unemployed at the time of his arrest.  He has 1 previous conviction for AOABH in 2005 and was sentenced to Probation Order for 12 months.

Mitigation

7.In mitigation, Ms Ho representing D, submitted that D is remorseful and wanted to turn a new leaf after serving his sentence in this case.  A letter under D’s own hand and 2 mitigation letters written by D’s parents and elder brother were submitted in support.  Ms Ho fairly conceded that the timely guilty plea was the only mitigating factor.  She referred to the individual approach and combined approach, and made meticulous mathematical calculations basing on the 3 tests (as indicated by the CA in HKSAR v Chan Yuk Leong[1] and HKSAR v Cheung Wai Man[2])  to assist the court in assessing the appropriate sentence.  She urged the court to be as lenient as possible to D, as did D’s family members.

Sentence

8.Ms Ho very helpfully referred the court to a recent authority of HKSAR v Herry Jane Yusuph[3] in which the CA provided comprehensive guidelines on how a sentencing court should assess the appropriate sentence in cases involving Trafficking in dangerous drugs.  The CA advised against adopting a discretionless starting point based upon quantity alone and set out a 6-steps approach to sentencing for such offences.

9.The present case involved 13.6 grammes of cocaine, 1.05 grammes of ketamine and 0.02 grammes of a solid containing both drugs.  For the cocaine, according to the sentencing guideline, it falls within the 10-50 grammes band which attracts a starting point of 5-8 years[4] while the ketamine falls within the 1-10 grammes band which attracts a starting point of 2-4 years.  The 0.02 grammes of solid containing both drugs do not make any difference so far as quantity only is concerned.

10.It is obvious that D was not merely a courier or store-keeper, but an actual trafficker.  In HKSAR v Islam Azharul[5] the CA considered that this increased the culpability of the offender which warrants an enhancement of 6 months to the starting point basing on quantity.

11.With the above in mind, I will adopt the combined approach, which I consider to be more appropriate in the present case, and adopt 5 years 6 month as the starting point for the cocaine.  6 months will be added for the ketamine involved, making a total starting point of 6 years.

12.2 kinds of dangerous drugs were involved in this case, which the CA has repeatedly stated to be an aggravating feature[6]. 3 months will be added to the notional starting point for this factor, making it 6 years and 3 months.

13.D is 33 years old.  This is his first offence involving dangerous drugs.  I will also ignore his previous record.  However, this is a very serious offence, the personal background of D carries very little weight by way of mitigation.  The only mitigating factor, as conceded by Ms Ho, is his timely guilty plea.  I will accord a full 1/3 discount for this factor.  I see no other mitigating factor warranting further reduction of the sentence.

14.Having considered all relevant factors, I adopt 6 years 3 months as the starting point, reduce it by 1/3 for D’s guilty plea.  For the offence D is facing, he is sentenced to 4 years 2 months’ imprisonment.