HKSAR v. Li Ming Chi

HCCC 34/2023

[2023] HKCFI 1519

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 34 OF 2023

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BETWEEN

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of trafficking in dangerous drugs contrary to S4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134 before the Eastern Magistrates’ Court on 6 February 2023.

2.On 26 December 2020, the police had conducted a raid upon an unlicensed bar for which the defendant admitted he was the person in charge.  Upon search the police discovered 28.28g of Cocaine within 214 plastic bags, 181 tablets or 19.20g of MDMA and 7g of Ketamine within another 38 plastic bags as well as numerous traces of the same drug and a very small amount of nimetazepam, which I will not take into consideration.  He was in the business of the commercial supply of dangerous drugs in an environment which clearly targeted underage drinkers, why else would anyone drink there.

3.The defendant is now 22 years of age and was educated up to Form 2.  At the time of this offending he was 19 years of age. He has a criminal record dating back to 2016 when he was 15 years of age.  That was for trafficking in dangerous drugs for which he received a training centre order.  He has other triad related matters through 2018 and 2019.  As a result of his arrest for this matter, an outstanding warrant was executed for possession an offensive weapon for which he was sentenced to 10 months imprisonment in January 2021.  He has only just completed serving that sentence.  This is quite record for a young man.

4.Mr Chau, on behalf of the defendant submits that the defendant suffered from ADHD from a young age.  He only completed Form 2 and was then employed as a kitchen assistant and later as a waiter.  His mother suffers from Rheumatoid Arthritis which requires between $8,000 -10,000 of medicine a month.  This has proven to be a heavy financial burden for the family, as his father earns only $20,000 per month and the defendant could not contribute because of his previous incarceration.  Since his last release, he worked as a waiter and provided $6,000 per month to the family coffers but then the advent of Covid meant he lost his job and could not contribute further.  It was at this point that the defendant met an old friend who offered the defendant a job selling alcohol and drugs in a bar for $800 per day.  He says he had only undertaken this employment for a few days when he was arrested.  Since his arrest the defendant has suffered a minor stroke because of his drug abuse and now realises the harm drug trafficking can do.  I note that he has had a positive attitude towards his detention and has already obtained a certificate in public safety and registered for other courses so as to improve his employability when released.

5.This is a cocktail of drugs.  As such the court must consider the most appropriate sentence in all the circumstances of the case.  There are a number of different approaches to this exercise and therefore little is gained from a minute mathematical exercise.  For that reason, the figures relied upon below are usually rounded down where appropriate.  The amount of individual drugs recovered would attract the following sentences if dealt with individually:

Cocaine	28.28g	6 years 5 months
Ketamine	7g	3 years 5 months
MDMA	19.20g	4 years 6 months
	Total	14 years 4 months

6.The total amount of the main narcotics recovered was 54.48g.  If each drug formed the full amount recovered, the sentence would be:

Cocaine	8 years 1 month
Ketamine	6 years 1 month
MDMA	6 years 1 month

These figures more accurately reflect an appropriate band for the starting point for sentence after trial i.e. between 6 years 1 month and 8 years 1 month imprisonment.

7.I have considered the absurdity, conversion and ratio tests as described by HKSAR v Chan Yuk Leong CACC 318/2013 and I consider that a starting point of 7 years 1 month to be appropriate.  However, there is the defendant’s criminal record which has been consistent over the 4 years in which he has been offending as well as the fact that he was a young person employed to sell drugs and supply alcohol to other youngsters.  For his re-offending I intend to add 2 months to that 7 years 1 month.  For the commercial sale of drink and drugs, I intend to add 6 months to show the gravity of that act which must have been carried out in the knowledge it targeted the young.

Conclusion

8.Having considered the calculations above, and the aggravating features of this case, I consider an appropriate sentence after trial is one of 7 years 9 months.  He will of course receive a full one third discount for his plea at the earliest opportunity which will result in a final sentence of 5 years 2 months’ imprisonment.

Ms Margaret Lau, SPP, of the Department of Justice, for HKSAR

Mr Chau Hing Pang, instructed by To, Lam & Co., assigned by Director of Legal Aid, for the defendant