The two defendants, Siu Yatho Chris, D1, and Li Ka-chon, D2, pleaded guilty to the respective charges against them and admitted the facts pertaining to those charges in the court below. They confirmed their guilty pleas and admission of the Summary of Facts before me this morning.
The charges they pleaded guilty to are:
Charge 1: Trafficking in a dangerous drug (against D1 only). Charge 1 concerns 23.8 grammes of a solid containing 20.5 grammes of cocaine.
Charge 2: Trafficking in dangerous drugs (against D1 only). Charge 2 concerns 27.6 grammes of a solid containing 23.7 grammes of ketamine and 2.18 grammes of a solid containing 1.94 grammes of cocaine.
Charge 3: Trafficking in dangerous drugs (against D1 only). Charge 3 concerns 97.2 grammes of a solid containing 56.5 grammes of fluorodeschloroketamine and 16.97 grammes of ketamine and 23.3 grammes of a solid containing 18.2 grammes of cocaine.
Charge 4: Trafficking in a dangerous drug (against D2 only). Charge 4 concerns 23.9 grammes of a solid containing 18.7 grammes of cocaine.
Charge 5: Trafficking in a dangerous drug (against D2 only). Charge 5 concerns 202 grammes of a solid containing 186.5 grammes of cocaine.
The Summary of Facts dated 13 January 2022
The Summary of Facts dated 13 January 2022 admitted by D1 and D2 reads.
“Charge 1 (D1 only)
1. At about 12.29 am on 4 November 2020, while conducting anti-burglary patrol, the police spotted D1 acting furtively near Lamppost 49756, Nam Fung Path, Aberdeen, Hong Kong. He was intercepted. Upon search, two transparent resealable plastic bags containing a total of 23.8 grammes of a solid containing 20.5 grammes of cocaine were found in D1’s right front trousers pocket. D1 was then arrested and cautioned. Under caution, D1 said he planned to deliver the ‘goods’ to others, and he had dated people who would take the ‘goods’ here.
Charge 2 (D1 only)
2. The key for private vehicle with registration mark WZ5170 (“WZ5170”) was found on D1. WZ5170 was parked at Nam Fung Path, Aberdeen, Hong Kong, just about 10 metres away from where D1 was searched. A total of 43 transparent resealable plastic bags containing a total of 27.6 grammes of ketamine and seven transparent resealable plastic bags with 2.18 grammes of a solid containing 1.94 grammes of cocaine were found inside WZ5170. Besides, cash of HK$5,700 was also found. D1 was arrested and cautioned again. Under caution, D1 said he was prepared to deliver the ‘goods’.
3. D1 was taken back to police station.
Charge 3 (D1 only)
4. At about 4.40 pm on 4 November 2020 the police escorted D1 to Nam Fung Path, Aberdeen again for investigation. D1 suddenly disclosed to the police that he had a hideout in the vicinity which had ‘things’. He said he could take the police there. The police thus cautioned D1. Under caution, D1 said he would bring the police in. He provided the passcode of the door lock to the police and told the police that the access card for entry was in his wallet.
5. At about 5 pm on the same day, police entered Room A, Ground Floor, No. 56A Gau Wai Chuen, Aberdeen, Hong Kong, (‘the premises’) with the access card provided by D1.
6. Upon search, an electronic balance, four plastic spoons and a transparent resealable bag containing a total of 23.3 grammes of a solid containing 18.2 grammes of cocaine were found on top of a desk inside the premises. Under the same desk, there was a plastic box which contained the following:
(1) A total of 150 plastic bags containing a total of 97.2 grammes of a solid containing 56.5 grammes of fluorodeschloroketamine and 16.7 grammes of ketamine;
(2) An electronic balance;
(3) Numerous resealable plastic bags; and
(4) A pair of scissors.
7. Thus, a total of 18.2 grammes of cocaine, 56.5 grammes of fluorodeschloroketamine and 16.97 grammes of ketamine were found inside the premises.
8. D1 was cautioned. Under caution, D1 said he agreed with what had been found and he understood.
9. The landlord of the premises confirmed that the place was rent by D1 since 15 June 2020.
Charge 4 (D2 only)
10 At about 1.50 am on the same day, police spotted private vehicle with registration mark WZ5351 (‘WZ5351’) approaching Nam Fung Path, Aberdeen, Hong Kong. They instructed it to stop. D2 was the driver of WZ5351.
11. Upon a search of WZ5351, a transparent plastic bag containing 23.9 grammes of a solid containing 18.7 grammes of cocaine was found in the storage compartment under the armrest in the central console.
12. D2 was arrested and cautioned. D2 admitted the ‘coke’ belonged to him and he intended to deliver it to ‘four-eyed boy’.
Charge 5 (D2 only)
13. At about 5.33 pm on 4 November 2020, the police conducted a house search at D2’s residence located at Room D7, 1st Floor, Jumbo Industrial Building, Kwun Tong, Kowloon with D2’s consent.
14. Upon search, nine transparent resealable plastic bags containing a total of 202 grammes of a solid containing 186.5 grammes of cocaine was found inside the premises.
15. D2 was cautioned. Under caution, D2 said he worked for ‘Ah Dick’, and he helped Ah Dick to distribute the drugs to others.
16. Landlord of the premises confirmed that D2 was the tenant at the material time.
Video-recorded interview (VRIs)
17. D1 remained silent in the subsequent VRI.
18. If the subsequent VRIs, D2 stated, inter alia, under caution that:
(1) He intended to give the cocaine seized in WZ5351 to ‘four-eyed boy’, as instructed by ‘Ah Dick’;
(2) He would be rewarded HK$400-500 for every delivery he made for ‘Ah Dick’;
(3) WZ5351 was provided by Ah Dick for dangerous drug pick up; and
(4) The cocaine seized in his residence was for distribution with instruction from ‘Ah Dick’ as well and it was the left-over from previous distribution.
19. D1 now admits that he was in possession of all the drugs seized in Charges 1 to 3, for the purpose of unlawfully trafficking. D2 now admits that he was in possession of all the drugs in Charges 4 to 5 for the purpose of unlawful trafficking.”
Antecedent and Criminal Record
D1
D1 is 29 years of age, born in Mainland China. He received education up to Form 3 in Hong Kong. He worked as a chef. He has a clear record.
D2
D2 is 32 years of age, born in Macau. He received education up to Form 3 in Hong Kong. He was an air-conditioner repairman. In 2006, D2 was convicted of one count of attempted robbery and was placed under a probation order for 21 months.
Mitigation
D1
Mr Richard Donald, counsel for D1, told me in mitigation that, after working as a chef for 8 years, D1, in order to earn more money changed to work as a food delivery worker. Unfortunately, he had an accident which curtailed this activity. While working as a driver, D1 was approached to deliver drugs for quick and easy money, and he gave in to this temptation and started selling drugs until he was arrested.
Mr Donald told me in mitigation that D1, after his arrest, had fully cooperated with the authorities. He asked me to take into consideration D1’s plea of guilty at the first opportunity, his remorse, the minor role played by D1 in the operation and his cooperation with the authorities after his arrest.
Mr Donald submitted that the starting point for Charge 1 should be 5.79 years.
For Charge 2, the starting point should be 4.1 years according to the ratio test, 6.2 years according to the absurdity test and 5.1 years according to the conversion test.
For Charge 3, the starting point should be 7.1 years according to the ratio test, 9.9 years according to the absurdity test and 7.9 years according to the conversion test.
Mr Donald asked me to follow the six step approach in HKSAR v Herry Jane Yusuph [2020] HKCA 974 and take into consideration the totality principle in determining the total sentence for the three charges.
D2
Mr Oliver Davies, counsel for D2, told me in mitigation that D2 resided with his father, prior to his remand. D2’s father has been diagnosed with tongue cancer.
Mr Davies submitted mitigation letters written by D2, his family members and his church pastor.
Mr Davies submitted that the court should treat both charges as a single offence, as they involved the same type of drug and were committed at the same time. He submitted that according to R v Lau Tak Ming & others [1990] 2 HKLR 370 and Attorney General v Pedro Nel Rojas [1994] 2 HKCLR, for quantities of cocaine between 200 and 400 grammes, it would attract a starting point of between 12 and 15 years. The total quantity of drugs seized for Charges 4 and 5 was 204.5 grammes of cocaine.
Mr Davies asked me to take into consideration that D2 pleaded guilty at the earliest opportunity. He was fully cooperative with the police upon arrest. He is fully remorseful now and is highly unlikely to re-offend.
Consideration
In sentencing the defendants, I have considered the nature of the dangerous drugs involved, the quantities of the drugs, the sentencing authorities, the facts of the case, the background of the defendants, the mitigation letters placed before me and all the matters urged on the defendants’ behalf by counsel.
D1
Charge 1
Charge 1 concerns 20.5 grammes of cocaine. Applying the sentencing guidelines, as laid down by the Court of Appeal in R v Lau Tak Ming and Others [1990] 2 HKLR 379(370?), the 20.5 grammes of cocaine for Charge 1 falls within the band of sentence of 5 to 8 years’ imprisonment.
Given that 20.5 grammes of cocaine was involved in Charge 1, I take 5 years and 9 months as the initial starting point.
Given the role of D1 in Charge 1, as revealed by the facts, was that of a courier simpliciter, I adopt 5 years and 9 months as the starting point.
D1 is entitled to the full one-third reduction for his early plea and clear record. That would bring the sentence from 5 years and 9 months down to 3 years and 10 months’ imprisonment. That is, 46 months. Apart from the guilty plea and clear record of D1, there is no other mitigating factor for Charge 1.
Charge 2
Charge 2 concerned 23.7 grammes of ketamine and 1.94 grammes of cocaine. Of the two drugs involved, cocaine is more serious in terms of potency, hence I would use the 1.94 grammes of cocaine as the basis for the consideration of the initial starting point.
The quantity of cocaine brings it within the band of sentence of 2 to 5 years, according to the tariff in Lau Tak Ming. Given the quantity of cocaine involved in Charge 2, I adopt 2½ years as the basis for the calculation of the initial starting point. In my judgment, the presence of 23.7 grammes of ketamine was significant. Given the quantity of the ketamine involved, an upward adjustment is called for and an initial starting point of 5 years should be taken.
Charge 2 involved the use of a motor vehicle for the delivery of the drugs. On the facts of Charge 2, the initial starting point of 5 years should be increased to 5 years and 3 months. That is, 63 months, which in my judgment, should adequately reflect the gravity of the offence, as revealed by the types and quantities of the drugs and also the culpability of D1, as shown by the role he played in the trafficking of the drugs with the use of a vehicle for the delivery of the drugs.
D1 is entitled to the full one-third reduction for his early plea. That would bring the sentence from 5 years and 3 months, down to 3½ years’ imprisonment. That is 42 months. Apart from the guilty plea, there is no other mitigating factor for Charge 2.
Charge 3
Charge 3 concerns:
(1) 56.5 grammes of fluorodeschloroketamine;
(2) 16.97 grammes of ketamine; and
(3) 18.2 grammes of cocaine.
In the case HCCC244/2021 [2022] HKCFI 2045, a case decided by this court, after hearing counsel and after considering the expert report placed before me, I decided to apply the tariff for trafficking in ketamine to fluorodeschloroketamine. In the present case, Mr Tsui for the prosecution and Mr Donald for D1, do not seek to argue otherwise. Hence, for the purpose of sentencing, I would add the 56.5 grammes of fluorodeschloroketamine to the 16.97 grammes of ketamine. The total quantity of narcotic for the application of the tariff in SJ v Hii Siew Cheng [2009] 1 HKLRD 1, is therefore 73.47 grammes.
Of the three drugs involved, cocaine is more serious in terms of potency, hence I would use the 18.2 grammes of cocaine as the basis for the consideration of the initial starting point. The 18.2 grammes of cocaine brings it within the band of sentence of 5 to 8 years according to the tariff in Lau Tak Ming. Given the quantity of cocaine involved in Charge 3, I adopt 5 years and 9 months as the basis for the calculation of the initial starting point.
In my judgment, the presence of 73.47 grammes of fluorodeschloroketamine and ketamine was significant. Given the combined quantity of these two drugs, an upward adjustment is called for and an initial starting point of 6 years should be taken.
The drugs in Charge 3 were stored at a hideout place rented by D1. The ketamine and fluorodeschloroketamine were contained in 150 plastic bags. Paraphernalia, like electronic scales, resealable plastic bags and a pair of scissors were also found.
On the facts of Charge 3, and given the role of D1, the initial starting point of 6 years should be increased to 6½ years. That is 78 months which, in my judgment, should adequately reflect the gravity of the offence as revealed by the types and quantities of the drugs and also the culpability of D1 as shown by the role he played in the trafficking of the drugs with the use of the hideout place rented by him for the storage of the drugs.
D1 is entitled to the full one-third reduction for his early plea. That would bring the sentence from 6½ years down to 4 years and 4 months’ imprisonment. That is, 52 months.
For Charge 3, the Summary of Facts reveals that D1 suddenly disclosed to the police that he had a hideout in the vicinity which had dangerous drugs. But for the information volunteered by D1, the police would not have been able to find the dangerous drugs stored at the hideout. In my judgment, an additional reduction of 6 months should be given to D1. With the additional reduction the sentence for Charge 3 is further reduced to 3 years and 10 months’ imprisonment. That is, 46 months.
There is no other mitigating factor, apart from the guilty plea, clear record and information leading to the seizure of the drugs for Charge 3.
D2
Charge 4
Charge 4 concerns 18.7 grammes of cocaine and Charge 5 concerns 186.5 grammes of cocaine. Applying the sentencing guidelines, as laid down by the Court of Appeal in Lau Tak Ming, the 18.7 grammes of cocaine for Charge 4 falls within the band of sentence of 5 to 8 years’ imprisonment, while the 186.5 grammes of cocaine for Charge 5 falls within the band of sentence of 8 to 12 years’ imprisonment.
Given that 18.7 grammes of cocaine was involved in Charge 4, I take 5 years and 8 months as the initial starting point. Charge 4 involved the use of a motor vehicle for the delivery of the drugs. On the facts, the initial starting point of 5 years and 8 months for Charge 4 should be increased to 6 years, which in my judgment, should adequately reflect the gravity of the offence as revealed by the type and quantity of the drug and also the culpability of D2, as shown by the role he played in the trafficking of the drugs with the use of a vehicle.
D2 is entitled to the full one-third reduction for his early plea. That would bring the sentence from 6 years down to 4 years’ imprisonment. Apart from the guilty plea, there is no other mitigating factor for Charge 4.
Charge 5
Given that 186.5 grammes of cocaine was involved in Charge 5, I take 11 years and 8 months as the initial starting point. The drug for Charge 5 was stored at a place rented by D2 for distribution pending instruction from Ah Dick, and that the drug found in Charge 5 was the left-over from previous distribution. On the facts of Charge 5 and given the role of D2, the initial starting point of 11 years and 8 months should be increased to 12 years, which in my judgment, should adequately reflect the gravity of the offence as revealed by the type and quantity of the drugs and also the culpability of D2 as shown by:
(1) The role he played in the trafficking of the drugs with the use of his residence for the storage of the drugs; and
(2) That he would distribute the drugs to others, pending instructions from Ah Dick.
D2 is entitled to the full one-third reduction for his early plea. That would bring the sentence from 12 years down to 8 years’ imprisonment. Apart from the guilty plea, there is no other mitigating factor I can see for Charge 5. I am not prepared to give any additional reduction for the cooperation provided by D2, for example, the fact that he took the police to his residence for a house search, leading to the discovery of the cocaine stored there.
Sentence for D1
Charge 1
For the reasons given, on Charge 1, D1 is sentenced to 3 years and 10 months’ imprisonment. That is, 46 months.
Charge 2
For the reasons given, on Charge 2, D1 is sentenced to 3½ years’ imprisonment. That is, 42 months.
Charge 3
For the reasons given on Charge 3, D1 is sentenced to 3 years and 10 months’ imprisonment. That is, 46 months.
Totality
Charges 1, 2 and 3 were committed by D1 on the same day. The three charges concern a total of 40.64 grammes of cocaine, 40.67 grammes of ketamine and 56.5 grammes of fluorodeschloroketamine. Given the types and quantities of the dangerous drugs involved and the culpability of D1 as outlined, in my judgment, a total sentence of 8 years’ imprisonment, that is 96 months, should adequately reflect the overall culpability of D1 for the three offences, bearing in mind the fact that but for the information he provided, the police would not have been able to find the dangerous drugs for Charge 3.
I order that:
(1) 10 months of the term of imprisonment for Charge 2 shall run consecutively to the 46 months’ imprisonment for Charge 1, making a sub-total of 56 months.
(2) 50 months of the sentence for Charge 1 and Charge 2 shall run consecutively to the 46 months’ imprisonment for Charge 3. The total sentence for Charges 1, 2 and 3 is 8 years’ imprisonment. That is, 96 months.
Sentence for D2
Charge 4
For the reasons given, on Charge 4, D2 is sentenced to 4 years’ imprisonment.
Charge 5
For the reasons given on Charge 5, D2 is sentenced to 8 years’ imprisonment.
Totality
Charge 4 and Charge 5 were committed by D2 on the same day. The two charges concern a total of 205.2 grammes of cocaine. Given the total quantity of cocaine involved, and the culpability of D2, as outlined, in my judgment, a total sentence of 8 years and 4 months’ imprisonment should adequately reflect the overall culpability of D2 for the two offences.
I order that 4 months of the term of the imprisonment for Charge 4 shall run consecutively to the sentence for Charge 5. The total sentence for Charge 4 and Charge 5 is 8 years and 4 months’ imprisonment.