HKSAR v. Tse Ka Hin

DCCC 721/2021

[2022] HKDC 1108

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 721 OF 2021

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REASONS FOR SENTENCE

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CHARGE

1.The defendant pleads guilty to one count of trafficking in dangerous drugs.  The drugs involved are 2.24 grammes of solid containing 2.18 grammes of cocaine and 22.98 grammes of solid containing 19.97 grammes of ketamine.

FACTS

2.At 2340 hours on 24 April 2021, the police intercepted a private car driven by the defendant in Sha Tin.  They found inside the car one bag containing 15 smaller bags of dangerous drugs, namely, 2.24 grammes of solid containing 2.18 grammes of cocaine, and three bags containing 34 smaller bags of dangerous drugs, namely, 22.98 grammes of solid containing 19.97 grammes of ketamine.

3.The defendant tried to run away but he was eventually caught by the police.

4.Under caution, the defendant said all the drugs were given to him by his friend.  They did not belong to him.

5.The estimated street value of all the drugs is over HK$14,000.

6.Inside the car where the drugs were found, the police also found cash in the amount of $26,150 in the storage drawer of the car.

RECORD

7.The defendant is now aged 30.  Between 2007 and 2019, he had four previous convictions relating to a number of offences, but none was related to drugs.

MITIGATION

8.Defence counsel says that the defendant worked as a car salesman after coming out of the prison.  He himself was a drug user but not an addict. Counsel says the defendant mainly took cocaine.  He rarely touched ketamine. Unfortunately, on this occasion he acted as a courier for his friend and thus committed the current offence of trafficking in dangerous drugs.

9.The defendant claims through his counsel that he would consume part of the drugs in question but he cannot be specific of the amount he would use for his own consumption.  Counsel says the defendant has been duly advised on the matter and he elects not to give evidence.

10.Counsel says the defendant pleads guilty in good time so he is entitled to one-third discount of sentence.  Counsel asks the court to impose a lenient sentence on the defendant.

11.Defence counsel has made some calculations regarding the notional starting point for the two drug components and also the notional sentences to be imposed according to the three tests, namely, the absurdity test, the conversion test and the ratio test.

12.According to defence counsel’s calculation, the notional starting point for the 2.18 grammes of cocaine is 2 years and 7 months’ imprisonment, while that for the 19.97 grammes of ketamine is 4 years and 5 months’ imprisonment. For the absurdity test, treating all the 22.15 grammes of narcotics as cocaine, the notional starting point is 5 years and 10 months’ imprisonment.  For the conversion test, converting all the 22.15 grammes of narcotics into ketamine, the notional starting point is 4 years and 8 months’ imprisonment.  For the ratio test, the notional starting point is 4 years and 8 months’ imprisonment.

SENTENCE

13.There are two kinds of dangerous drugs in question, namely, 2.18 grammes of cocaine in 15 small bags and 19.97 grammes of ketamine in 34 small bags. The estimated street value of those drugs is over HK$14,000. 

14.Inside the car where the drugs were found, the police also found cash of $26,150.

15.The defendant claims he would be taking part of the drugs for his own consumption.  However, there is no credulous evidence from him.  On the other hand, the facts say the drugs were given to the defendant by his friend.  The defendant’s antecedent statement says he is not a drug addict and the urine test done by CSD showed that the defendant had negative responses to various kinds of drugs being tested.

16.I therefore do not accept the defendant’s claim that he had part of the drugs for his own consumption.  The defendant would be sentenced on the basis that he had all the drugs for the purpose of trafficking.

17.Individually, the 2.18 grammes of cocaine will attract a notional starting point of 2 years and 7 months’ imprisonment, while the 19.97 grammes of ketamine will bring about a notional starting point of 4 years and 5 months’ imprisonment.

18.Under the absurdity test, the notional starting point of the 22.15 grammes of narcotics (if all treated as cocaine)  is 5 years and 10 months’ imprisonment.

19.Under the conversion test, if all the 22.15 grammes of narcotics are treated as ketamine, the starting point is 4 years and 8 months’ imprisonment, but if all the narcotics are treated as cocaine, the notional starting point will be 5 years’ imprisonment.

20.Under the ratio test, the notional starting point is 4 years and 8 months’ imprisonment.

21.The three said tests are only used as a means to check against excessive sentencing.  The court is not bound to adopt the lowest notional starting point or any of the calculations as the real sentence.

22.Individually, 19.97 grammes of ketamine attracts 4 years and 5 months’ imprisonment while 2.18 grammes of cocaine will attract 2 years and 7 months’ imprisonment.

23.I shall adopt the combined approach to sentence the defendant.

24.The Court of Appeal said in HKSAR v Islam SM Majharul, CACC 67/2019, that the more potent drug should be used as the base for sentence. With respect, that approach is only appropriate when the different drugs are more or less equally significant in terms of sentence.  Here, the cocaine component carries a notional starting point of 2 years and 7 months’ imprisonment while the ketamine component attracts a notional starting point of 4 years and 5 months’ imprisonment.  The latter is much more significant than the former.  It is thus more logical to use the ketamine component as the sentence base.

25.The defendant did not just traffic in 19.97 grammes of ketamine.  He also trafficked in 2.18 grammes of cocaine.  Trafficking in more than one kind of dangerous drugs is an aggravating factor even though the drugs are not mixed together.

26.The defendant has no drugs record and he pleads guilty in good time.  In the circumstances, I shall adopt a resultant starting point of 5 years and 3 months’ imprisonment (ie 63 months’ imprisonment)  as the starting point for his trafficking of the two drugs in question.  He is entitled to one-third discount.  He is thus sentenced to prison for 42 months.