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HCCC 28/2023
[2023] HKCFI 1768
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 28 OF 2023
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| Date: |
14 June 2023 at 10.10 am |
| Present: |
Mr Chan Hing-man Raymond, SPP (Ag) of the Department of Justice, for HKSAR |
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Mr Karl Keung, instructed by Tang & Lee, assigned by DLA, for the accused |
| Offence: |
Trafficking in dangerous drugs (販運危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT:
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The defendant had pleaded guilty in the lower court to one count of trafficking in a dangerous drug, namely 42.6 grammes of a crystalline solid containing 41.2 grammes of methamphetamine hydrochloride, 66.5 grammes of a solid containing 57.61 grammes of ketamine, and eight tablets containing 1.2 grammes of 3,4-methylenedioxymethamphetamine.
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The facts are not difficult. It is on 30 June 2021 when police officers at about 10.45 pm intercepted the defendant in Sham Shui Po. He did not have any identity document on him but he was carrying a bunch of keys with a paper written with an address in Chinese in Kweilin Street. The defendant then, because of his language difficulty, then took the police to get his identity document at his home. Upon entry into the apartment, the police found the drugs which is the subject matter of the charge on a desk beside the bed and underneath the bed sheet.
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And under arrest and caution, the defendant remained silent because of his language difficulty. But subsequently, with the assistance of an interpreter in the video-recorded interview, he claimed that he had bought the drugs a few days ago from a man for about $2,000.
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And the drugs were subsequently estimated by the police expert to have the street value of about $61,794.
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The defendant is aged 22 and has a clear record in Hong Kong. He arrived in Hong Kong, according to Mr Keung, illegally in 2020. He has studied up to Form 3 in Vietnam. He is a Form 8 holder. There is nothing much in the defendant’s background as far as mitigation is concerned apart from the fact that he is of a clear record in Hong Kong and that he had pleaded guilty at the earliest opportunity.
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This is a mixture of drugs and it is quite a large quantity. And the courts have said all along that for this mixture of drugs, apart from doing the conversion test, one should also do the ratio test and the absurdity test. And I am grateful to counsel for working out these various tests mathematically and I agree with both counsel that the ratio test would give a more reasonable level of sentence.
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And working out the ratio test, I am grateful to Mr Chan who has worked it out to be that the entire quantity of drugs, if converted into one, the weight will be about 100 grammes. And working out the ratio, it would be about 41.2 per cent being ‘Ice’ and 58.8 per cent being ketamine.
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So having worked that out and assuming if it was ‘Ice’ and ketamine, together it would be a total of 8.61 years. Mr Keung, having done his calculation again also agrees with that conclusion. As this test yields the most favourable result for the defendant, I am therefore persuaded to adopt this ratio test.
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The starting point sentence being 8.6 years, there is also the aggravating factor that he is a Form 8 holder. The Court of Appeal has said that this aggravating factor should be recognised in an increase of the sentence because the defendant, being someone who is only allowed to be in Hong Kong as a Form 8 holder, has abused the hospitality of Hong Kong people by committing this offence. So I will increase the overall sentence to one of 9 years.
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And then I will give him the full one-third discount because of his early plea and his clear record. So that reduces the sentence to one of 6 years’ imprisonment.
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