HKSAR v. Yun Yu

DCCC 737/2021

[2022] HKDC 1286

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 737 OF 2021

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REASONS FOR SENTENCE

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Charge

1.The defendant pleaded guilty to two charges of trafficking in a dangerous drug[1]. The 1^st charge involves 0.33g of a solid containing 0.17g of ketamine.  The 2^nd charge involves 5.3g of a solid containing 4.97g of cocaine, 168.25g of a solid containing 91.03g of ketamine and 0.06g of a solid containing cocaine and ketamine.

Facts

2.Both offences took place on 21 January 2021.  At 1915 hours, the defendant was seen acting suspiciously at the staircase, 3/F, Kam Foo Factory Building, Kwai Chung, New Territories.  He was stopped and searched by Customs Officer CO 15226 who found a small plastic bag containing ketamine, subject matter of the 1^st charge, in the pocket of the defendant’s jacket.

3.The defendant was immediately arrested. Under caution, he admitted that:

(i)  the drug was ketamine which belonged to him;

(ii)  he would give it to others later;

(iii)  the drug was taken from Room 325, 3/F of the same building; and

(iv)  the key of Room 325 was in his rear left trousers pocket.

4.The defendant was also found to have an iPhone, 4 keys with a key ring and HKD$2,420.

5.The defendant was taken to Room 325 for a search.  He first provided the password to open the main entrance of 3/F, then the door of Room 325 was opened with one of the keys seized.

6.Inside Room 325, the drugs specified in charge 2 were found, namely:

a. 35 plastic bags containing 4.97g of cocaine in narcotic content;

b. 17 plastic bags containing 90.78g of ketamine in narcotic content;

c. 1 white electronic balance containing traces of a solid containing ketamine;

d. 1 glass bowl containing 0.25g of ketamine in narcotic content;

e. 1 black electronic balance containing 0.04g of a solid containing cocaine and ketamine; and

f. 1 plastic container containing 0.02g of a solid containing cocaine and ketamine.

7.Besides, the Customs Officer found, inter alia, empty plastic bags, a cutter, a pair of tweezers, a Nokia mobile phone, a Samsung mobile phone and HKD$14,997. 

8.At 1921 hours, the defendant was cautioned in relation to the drugs found in Room 325.  Under caution, he said, inter alia, that:

a. the substances were “K Chai” and Coke which belonged to him;

b. he was responsible for packing and distribution, and he received $10 for delivery of each pack of drug;

c. the electronic balances, the glass container and the empty plastic bags were for packing drugs;

d. the drugs on the electronic balances was ketamine; and

e. the cash and mobile phones belonged to him.

9.At a later time, the defendant stated that the phones found in Room 325 were given by an Ah Ming for him to receive calls, and all the drugs were placed there by Ah Ming who asked him to distribute them.

10.During subsequent investigation, it is found that:

a. the estimated street value of the dangerous drugs is HKD$120,531.45.

b. the WhatsApp conversations found in the iPhone and the Samsung mobile phone contained information and photos which related to suspicious drug trafficking transactions / activities.

Criminal record

11.The defendant is of clear record. 

Mitigation

12.The defendant is represented by Miss Tjia. 

13.In mitigation, Miss Tjia submits that the defendant was born in China.  He is the only child of his parents who got divorced when he was about 3 years old.  In 2017, the defendant moved to Hong Kong to live with his mother and his stepfather.  The defendant received education up to secondary one level.  He then quitted school and had once worked as a waiter and a kitchen causal worker.  He started to work as a casual labourer since January 2020, earning around HKD$12,000 a month.  He contributed HKD$2,000 to his mother and another HKD$2,000 to his father who lives in the Mainland China.  As he wanted to improve the living condition of his parents, he was lured to commit the present offences so as to earn some quick money.

14.Miss Tjia says, for the 2^nd charge, it involves 4.97g of cocaine and 91.03g of ketamine and 0.06g of a solid containing cocaine and ketamine.  For easy calculation, she proposes that the mixture be equally split to 0.03g of ketamine and 0.03g of cocaine.  As a result, the 2^nd charge involves 5g of cocaine (4.97g + 0.03g)  and 91.06g of ketamine (91.03g + 0.03g).

15.She refers to the sentencing guidelines laid down in:-

a)  SJ v Hii Siew-cheng [2009] 1 HKLRD 1, the sentence for trafficking in ketamine between 50g and 300g is 6 to 9 years. The starting point for trafficking the ketamine in the 2^nd charge is therefore 77.91 months[2];

b)  R v Lau Tak Ming & Another [1990] 2 HKLRD 370 and AG v Pedro Nel Rojas [1994] 2 HKCLR 69, the sentence for trafficking up to 10g of cocaine is 2 to 5 years. The starting point for trafficking the cocaine in the 2^nd charge is therefore 42 months.

16.If the individual approach of sentence is to be adopted, the starting point for the 2^nd charge will be 119.91 months (by adding the two starting points together: 77.91 months + 42 months).

17.Miss Tjia then refers to HKSAR v Islam SM Majharul [2020] 3 HKLRD 146 and submits that the court should adopt the combined approach in sentencing instead of the individual approach, and the correct starting point for sentence for the 2^nd charge should be calculated by reference to the use of the absurdity test, the conversion test and the ratio test.

18.She also submits that there is an aggravating factor in this case because the defendant had trafficked in 2 types of drugs. 

19.Finally, she states that the defendant has already been detained for 21 months which in effect equivalent to about 48 months of imprisonment as the starting point (1/3 discount for his guilty plea and another 1/3 discount for good behaviour whilst in prison).  The defendant’s parents have genuine concerns if the defendant were to be sentenced to the Training Centre because the defendant may be detained for up to another 3 years.  As such, the period of being remanded before sentence together with serving sentence in the Training Centre may be significantly over and above what he may otherwise be sentenced to imprisonment.  The defendant shares that concern and therefore implores the court in not sentencing him to the Training Centre.

Sentence

20.Under s.109A of the Criminal Procedure Ordinance, Cap. 221, the court shall not sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information relevant to the character of such person etc.  However, s.109A does not apply to a person who has been convicted of an excepted offence.  The present offences are excepted offences.

21.Given the serious nature of the offences and that the defendant was not of extreme youth when he committed the offences, I decide not to call for the Training Centre and the Detention Centre Reports.  To send the defendant to serve a prison term is the only viable option for sentence in this case.

22.Notwithstanding this, I called for a Background Report for the defendant committed the present offences when he was at a relatively young age (aged 17).  I consider that it may be beneficial for me to obtain more information from the said report in order to better understand the background leading to his offending, his character and other information which may be relevant for sentence purpose.

23.The Background Report was explained to the defendant.  It is shown in the background report that the defendant was born in Hainan in 2004.  His parents got divorced in 2008.  After he came to Hong Kong as a new immigrant to join his mother and his step-father, he encountered adjustment difficulty.  He could hardly catch up with his secondary one studies, and he dropped out from school in 2019.  He then attended manual work earning a meagre income.  

24.In respect of the offence, the defendant said that he was asked by his ex-school mate to do drug related work.  His main duty was to pack the dangerous drugs into plastic bags and prior to being arrested, he had only worked for a few days.  He is now very remorseful for having committed these offences.

25.In sentencing, I have considered everything said and written on behalf of the defendant by Miss Tjia, the relevant authorities and the mitigating letters submitted.  In gist, the defendant said that he was badly influenced by his peers who lured him to commit the present offences, and at the same time, he was under financial pressure.  He deeply regrets for what he has done.  His parents and the relatives of the defendant described the defendant as a filial son and he committed the present offences out of ignorance and the desire to earn quick money to support the family in times of Covid. 

1^st charge – starting point

26.In respect of the 1^st charge, the drug involved is 0.17g of ketamine.  According to the guidelines, for trafficking up to 1g, the sentence is within the sentencer’s discretion.  I adopt a starting point of 3 months’ imprisonment.

2^nd charge – starting point

27.In respect of the 2^nd charge, the drugs involved are 5g of cocaine and 91.06g of ketamine.  The starting point of sentence for each type of drug as stated in paragraph 15 above is 42 months and 77.91 months respectively.

28.The total quantity of the two drugs is 96.06g, and

a. if the total quantity was cocaine, the starting point would be around 9 years 3 months (110.74 months);

b. if the total quantity was ketamine, the starting point would be around 6 years and 7 months (79 months).

29.If the individual approach is adopted, the overall starting point would be 15 years and 8 months (almost 190 months), a starting point which is absurdly high. 

30.In HKSAR v Islam Majharul [2020] 3 HKLRD 146, the Court of appeal revisited the individual approach and the combined approach used in sentencing a defendant who is found guilty of trafficking in multiple drugs. In giving the judgment of the Court, Zervos JA said: -

“24. The combined approach involves the calculation of the applicable sentence for the more or most serious drug (in terms of potency), and then adjusting the sentence upwards to take into account significant quantities of other (less serious)  drugs.”

31.In light of the calculations and the reasoning outlined in paras 28 & 29 above, I agree with Miss Tjia that the combined approach should be adopted in determining the starting point for the 2^nd charge.

32.The Court of Appeal also set out the methodology to be used when adopting the combined approach.  First, the sentencing court should determine which drug should be used as the base drug.  On this, Zervos JA went on to say:-

“24… In carrying out this task, the sentencing court should take a common sentence approach in determining which drug is to be the base drug in order to calculate the starting point. There may be cases where the more or most serious drug is of such a small quantity that it would be unrealistic to use it as the base drug. As stated, it will be a matter of common sense.”

33.Back to the present case, Miss Tjia submits that ketamine should be used as the base drug.  It is noted that the total quantity of the 2 drugs involved is 96.06g. It means that 5g of cocaine and 91.06g of ketamine respectively represents 5.2% and 94.59% of the total quantity of the drugs.

34.Although cocaine is the more or most serious drug in terms of potency, the amount involved here is very small.  It only represents 5.2% of the total drugs.  Having considered the small quantity of cocaine and the corresponding scale of sentence, I adopt ketamine as the base drug.

35.According to the sentencing guidelines for 91.06g of ketamine, the starting point is 78 months (6 years and 6 months).   

36.I now have to determine by how much this starting point should be increased to allow for the quantity of the other drug namely cocaine.  As said in para 27 of Islam SM Majharul, this is ultimately an exercise of sentencing discretion and should be done by considering the quantity of cocaine, the sentencing guidelines for cocaine and by reference to the starting point adopted for the base drug, ketamine; conducting an overall comparison of the sentencing guidelines of the two drugs; and examining the results of the absurdity test, the conversion test and the ratio test.

37.The results of the 3 tests[3] are as follows:

a. the absurdity test is almost 110.74 months’ imprisonment;

b. the conversion test based on the cocaine sentencing guidelines is 82.41 months, and on the ketamine sentencing guidelines is 79 months; and

c. the ratio test is 80.33 months.

38.Taking all the aforesaid matters into account to calculate a reasonable and realistic increase to the starting point, I consider it appropriate to increase the starting point of 78 months by 2 months to 80 months.

39.Given that the defendant had trafficked in 2 types of drugs, the starting point is enhanced by 1 month to 81 months.

Sentence reduction

40.The defendant has entered a timely plea and is therefore entitled to a one-third discount of sentence from the starting point. 

41.After discount, the sentence for the 1^st charge is 2 months’ imprisonment, and for the 2^nd charge is 54 months’ imprisonment. 

42.Miss Tjia submits that the defendant voluntarily informed the Customs Officer the location where the bulk of dangerous drugs in the 2^nd charge was stored.  It is confirmed by the prosecution that without the defendant volunteering this piece of information, the Customs Officer would not have known that there were drugs stored in Room 325.

43.In her supplemental mitigation submissions, Miss Tjia refers to a number of authorities[4] and submits that it has long been recognised that the court has a discretion to consider volunteered confession as a mitigating factor for sentencing discount on top of 1/3 discount for a guilty plea.

44.I have carefully considered all the authorities to which Miss Tjia referred. I note that some of these authorities are from the District Court or the Court of First Instance and therefore are not binding on me.

45.In HKSAR v Ma Ming [2013] 1 HKLRD 813, the Court of Appeal having considered HKSAR v Hui Chi Tong, CACC 414/2007, unreported, 20 June 2008 and HKSAR v Tsang Kai On [2011] 2 HKLRD 340, had this to say:

“27. A discount of one-third is quite a substantial discount. One of the main purposes of the court giving this one-third discount to a defendant who pleads guilty is to encourage a guilty person to own up to the crimes he committed, so as to conserve the resources of the community and to ensure that justice can be administered more efficiently…

31. The applicant cooperated with the police and after he was arrested he frankly confessed. This led to his being charged with the 1^st charge. We are of the view that this factor should also be subsumed within the one-third discount, and should not be treated as a reason for giving any discount of more than one-third…

32. When dealing with individual cases and when considering the totality of the sentence, the court, in exercising its discretion, can take into account the fact that the frank confession of the defendant provides the only evidence which supports the charge or charges and therefore make minor adjustments to the total sentence. To this we do not object. However, this factor does not support the argument that this kind of defendant must be given a further discount over and above the one-third discount. If the court does not give such defendants any discount in addition to the one-third, that does not constitute an arguable ground of appeal” (my emphasis)

46.It appears that any such additional discount still remains within the discretion of the court.

47.In HKSAR v Hui Chi Tong, the Court of Appeal said:

“25. But for the voluntary confession, the applicant would not have been found guilty of 1^st charge. Such voluntary admission, coupled with a plea later, showed genuine remorse. It is in the public interest to encourage an offender to ‘own-up’ to his misdeed and to face the consequence. The most effect way of giving encouragement is to give a greater than normal discount upon a plea. In all the circumstances of this case, we are of the view that a further discount of two months is appropriate.”

48.In light of the aforesaid, I consider that additional discount should be given in the present situation.  The defendant volunteered information which led to the discovery of more dangerous drugs found in another location, and without his information, the offence of charge 2 would not have been known. I will further reduce the sentence of the 2^nd charge by 3 months i.e. from 54 months to 51 months’ imprisonment.

49.It is disclosed in the mitigation that the defendant, in order to improve the living for his family, committed the offences so as to earn some quick money.  He must appreciate that his family will suffer if he is convicted.  Family hardship in the given circumstances is not a valid mitigating factor: HKSAR v Shum Chung Wai [2002] 2 HKLRD 81, at para 19.  Nor the fact that the defendant was under financial pressure: HKSAR v Somphaksorn Lamyai and Another CACC 88/2008, at para 17.

Totality principle

50.Having considered all the circumstances of the case, I order that both sentences are to run concurrently with each other, making a total of 51 months’ imprisonment.