HKSAR v. Feng Zhian

HCCC 29/2023

[2023] HKCFI 1840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 29 OF 2023

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to two counts 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 30 January 2023.

2.On 25 November 2021, the Customs & Excise were conducting an anti-narcotics operation in the vicinity of the Un Chau Shopping Centre in Cheung Sha Wan. The defendant was seen to enter 349-351 Castle Peak Road and later exit the building, at which point he was intercepted. He was searched and a re-sealable plastic bag was recovered from his underpants in which were found numerous plastic bags containing in total, 9.68 g of cocaine and 22.1 g of ketamine, which forms the basis of Count One. A search of his home address within 349-351 Castle Peak Road, recovered a further 1.66 g of cocaine and 122.58 g of ketamine, which were in 11 and 83 separate re-sealable plastic bags respectively. These drugs form the basis of Count Two. On arrest and caution the defendant maintained that someone had given him the drugs and he was to deliver them to others for a reward of $2-3,000 for each delivery. He was a simple storekeeper and courier.

3.The estimated street value of those drugs was in the region of $134,000.

4.The defendant is 30 years of age and was born and educated in Mainland China. He is married with one son. He has a clear criminal record in Hong Kong. Mr Tse SC, on behalf of the defendant, submits that he had been working as a renovation worker in China earning approximately 8-9,000 RMB per month but that he came to visit his wife in Hong Kong in 2018 and was unable to return to China during the pandemic. As a result, he lost his job and could not work in Hong Kong because he was not a HKID holder. Therefore, he was supported by his wife who was on CSSA. He committed this offence because of financial hardship.

5.This is a cocktail of drugs arising out of the same events. The total narcotics recovered were 144.68 g of Ketamine and 11.34g of Cocaine. The sentencing guidelines for trafficking in Ketamine can be found in Secretary for Justice v Hii Siew Cheng [ 2009] 1 HKLRD 1. For trafficking in 144.68g of Ketamine the starting point for sentence after trial would be in the region of 7 years 1 month’s imprisonment. The sentencing guidelines for trafficking in Cocaine can be found in R v Lau Tak-ming & Others [1990] 2 HKLR 370. 11.34 g of cocaine would attract a starting point in the region of 5 years 1 month’s imprisonment. If the defendant were simply to be sentenced upon that basis, he would receive a sentence of 12 years 2 months’ imprisonment before discount.

6.But this a cocktail of drugs. I have considered the absurdity, conversion and ratio tests as described by HKSAR v Chan Yuk Leong CACC 318/2013 and I consider that an overall starting point of 7 years 6 months to be appropriate. That will be enhanced by 6 months to take into consideration the latent risk factor, making a total of 8 years.

Conclusion

7.Having considered the methodology which can be applied to cases involving a cocktail of drugs, and both the mitigation advanced by Mr Tse SC as well as the aggravating features of this case, a total sentence of 8 years in all the circumstances is appropriate before consideration of the one third discount for his plea entered at the earliest opportunity. Under Count One the defendant will receive a sentence of 6 years’ imprisonment, which, after discount, will be a term of imprisonment of 4 years. Under Count Two the defendant will receive a term of imprisonment of 7 years, which, after discount, will be a term of 4 years 8 months imprisonment. 1 year 4 months of Count Two will be served consecutively to his sentence under Count One, making a total term of imprisonment of 5 years 4 months.

Ms Winnie Mak, SPP, on behalf of the Department of Justice, for the HKSAR

Mr Bruce Tse SC, instructed by Messrs Cheung & Liu, assigned by the Director of Legal Aid, for the defendant