HKSAR v. Lai Ho Fung

DCCC 756/2022

[2023] HKDC 884

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 756 OF 2022

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REASONS FOR SENTENCE

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1.Upon his guilty plea and admission of facts, the defendant (D) is convicted with a single count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Admitted facts

2.At about 1653 hours on 16 May 2022, DPC17212 (PW1) found D acting furtively at Hanoi Road near the junction of Mody Road, Tsim Sha Tsui. D was intercepted. Upon search, 3 transparent resealable plastic bags each containing a number of transparent resealable plastic bags containing suspected dangerous drugs were found in the shoulder bag carried by D. HK$4,460.50 and 2 mobile phones were found of D.

3.PW1 arrested D for the offence of trafficking in dangerous drugs. Under caution, D admitted that he purchased the dangerous drugs for his own consumption.

4.In the subsequent video-recorded interview, D admitted under caution that he purchased the ketamine and cocaine from an unknown male in the sum of HK$12,000 near a convenience store in Tsim Sha Tsui. He had been a drug addict of ketamine and cocaine for about a year. He consumed dangerous drugs about 2 to 3 times a day in toilet in public places or at home and about 1 to 2 grammes of dangerous drugs would be consumed daily. He sniffed ketamine. As to cocaine, he first grounded cocaine before putting the same into cigarettes. He usually spent a few thousand dollars to 10 thousand odd dollars on dangerous drugs every month. The ketamine and cocaine concerned would last for about 1 odd month.

5.Government Chemist confirmed that the 3 plastic bags contained: 24 plastics bags containing a total of 16.3 grammes of a solid containing 13.6 grammes of ketamine; 17 plastics bags containing a total of 11.4 grammes of a solid containing 9.38 grammes of ketamine; 2 plastics bags containing a total of 0.32 grammes of a solid containing 0.25 grammes of cocaine. A total of 43 plastic bags containing a total of 22.98 grammes of ketamine and 0.25 grammes of cocaine.

6.Street value of the drug was around HK$10,777.98.

7.At the material time of the offence, D had with him the dangerous drugs seized for unlawful trafficking.

Mitigation

8.The defendant is now 23 years of age (aged 22 at the time of the offence) and is single. He is locally born and received education up to secondary 4 level. He lives with his parents. He used to work as a transportation worker before arrest. He has a total of 2 previous convictions in 2017 for theft and assault where he received a probation order for 15 months but was in later put into the Detention Centre due to his breach of the probation order.

9.In mitigation, defence focuses on how the Court should calculate the sentence and suggest to base the sentence more on ketamine (22.98g) than cocaine due to the small quantity of cocaine (0.25g). The defence also suggests proportion of the dangerous drugs were for self-use and suggests a reduction of 25%.

Sentencing consideration

10.The prosecution, without suggesting any sentence, is equally helpful in setting out how to apply different tests with different calculation outcomes.

11.For trafficking in cocaine and ketamine, the Court of Appeal has laid down clear sentencing guidelines. According to R v Lau Tak Ming [1991] 2 HKLR 370 and Attorney General v Pedro Nel Rojas [1994] 1 HKC 342, for trafficking up to 10 grammes of cocaine, the sentence is 2 to 5 years’ imprisonment. On the other hand, according to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, for trafficking over 1 gramme to 10 grammes of ketamine, the sentence is 2 to 4 years’ imprisonment.

12.As the charge is concerned with two different types of dangerous drugs with different sentencing guidelines, the court will follow the methodology as set out in HKSAR v Islam SM Majharul [2020] 3 HKLRD 146. Considered all the circumstances, the court will adopt the combined approach.

13.First of all, on a pure mathematical calculation, the starting point for trafficking of 0.25 grammes of cocaine should be 24 months’ imprisonment whereas trafficking of 22.98 grammes of ketamine the starting point of which should be about 56 months’ imprisonment. If adding together will arrive at 80 months, which is not consistent with the current judicial approach.

14.Cocaine is the more potent drug as compared with ketamine. However, as the amount of ketamine in this case is much larger than cocaine and will therefore attract a much higher starting point, it is more appropriate to use ketamine as the base drug in this case.

15.According to decided cases, the court has to examine the results of the absurdity test, the conversion test and the ratio test to arrive at a reasonable and realistic starting point. In the present case, the results of those tests will arrive at the respective sentence of 72 months, 57 months and 56 months. The ratio test fetches the same outcome of 56 months if I agree with the defence that the quantity of cocaine is so minimal and I should just focus on the quantity of ketamine. As said before, trafficking of 22.98 grammes of ketamine, if convicted after trial, should receive about 56 months’ imprisonment. I decide to adopt 56 months as the starting point.

16.For the issue of self-consumption, I took into account the factors[1] to be considered in HKSAR v Wong Suet Hau, Ice & Another [2002] 1 HKLRD 69 (para 34). The amount for self-consumption must be a “significant proportion” of the seized drugs. Any quantity less than a significant proportion would make no or practically very little difference to the sentence (see HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572).

17.In HKSAR v Cheung Wai Man [2019] 1 HKLRD 817, to substantiate the mitigation of self-consumption, there is obviously a need to have “credible and reliable information and material, that fully and properly substantiates the proportion of the drugs intended for self-consumption” (see paras 54 and 60).

18.In HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 (para 20), it is held that possession of dangerous drugs is in itself a serious offence and there is also the issue of latent risk to consider. Applying Cheung Wai Man case, sometimes, for instance, sentence on 80% of the drugs as if trafficking in addition to 20% as if simple possession with latent risk factor may result in a higher sentence.

19.Further, there seems to be two approaches in dealing with the issue of self-consumption, one is broad brush approach by simply receiving information from the bar table and for the court to decide whether to accept the claim for self-use and for what proportion. Another approach is to give options to the defendant as to whether to give evidence in the witness box, subject to cross examination (overall justice approach). Parties seem to favour the overall justice approach. Case stood down for the defence to take further instructions as to whether he will continue to suggest “self-use” and whether he will give evidence. The defendant chose not to advance on “self-use”.

20.In short, the strongest mitigating factor remains the defendant’s early guilty plea. After one-third discount upon the defendant’s guilty plea, the sentence for the charge is 37.33 months' imprisonment. I round it down to 37 in the light of his cooperation with police. There is no room for further reduction.