HKSAR v. Ko Kin Hau

HCCC 119/2023

[2023] HKCFI 2030

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 119 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 8 May 2023 and he has confirmed that plea before this court.

2.In the evening of 18 February 2022, as a result of an anti -narcotics operation, the defendant was apprehended and a search was carried out of a unit he had been observed to exit.  7.09 g of heroin hydrochloride was found within his brown shoulder bag along with a mobile phone and HK$35,000.  Under caution, the defendant stated that the heroin was for his own consumption.  Elsewhere in the unit, the police recovered 209 g of methamphetamine hydrochloride in 21 re-sealable plastic bags; 6 re-sealable plastic bags of ketamine weighing 2.99 g; an electronic scale and a large number of empty re-sealable plastic bags.  Under caution, the defendant said that these drugs were also for his own consumption.  Under VRI, the defendant maintained that whilst he was unemployed, the cash belonged to him and had come from a financial institution, presumably some form of loan.

3.The market value of the drugs at the time was HK$ 124,445. 

4.The defendant is a mature man of now 55 years of age and was educated up to Form 2.  He is divorced and lives alone, although he has a 20 years old son and a 16 year old daughter.  He said he was unemployed at the time of his arrest but Mr Wong submits that he was in fact employed as a caretaker in a care home earning about HK$20,000 per month.  He was working for his girlfriend.  Given his stable income it makes his mitigation that he carried out this crime out of stupidity all the more unbelievable as he obviously had a source of stable income from a partner.  He told the police that he has been a drug addict since the age of 28.  He maintained in his unverified antecedent statement, that he usually consumed 0.1 - 0.2 g of ICE, Ketamine or Heroin, twice per week.  If that were the case, then it would take him between 21-35 weeks to consume the Heroin which was found upon him and does not cover the considerable amount of ICE also recovered.  He has a criminal record dating back to 1996, which includes 5 matters of possession and 1 for trafficking in dangerous drugs amongst others. His last sentence of imprisonment was in November 2020 when he received a sentence of 8 months for possession of DD and was released on 30 March 2021.  This offence occurred just under a year later in February 2022 and has clearly escalated his criminality.

5.This is a cocktail of drugs.  7.09 g of Heroin, 209 g of ICE and 2.99 g of Ketamine.

6.If these drugs were sentenced individually under the current sentencing guidelines, the 7.09 g of Heroin would attract a starting point after trial of 4 years’ imprisonment; the ICE would attract a starting point of 13 years 6 months (what I will refer to as my baseline sentence)  and the Ketamine would attract a starting point of 2 years.  If added together that would be a total starting point of 19 years 6 months.  However, over 95% of the drugs were ICE and only 3.2% and 1.4% respectively were Heroin and Ketamine.  The total weight of drugs recovered was 219.08 g.

7.I have considered the absurdity, conversion and ratio tests as described by HKSAR v Chan Yuk Leong CACC 318/2013 and HKSAR v Yip Wai-yin & Anor [2004] 3 HKC 367 and other relevant authorities.  I consider that a starting point after trial of 13 years 7 months to be appropriate which reflects the sentence if all of the drugs were ICE and has added just one month to what I consider to be the baseline sentence.  With respect, I can see no justification at all, as suggested by Mr Wong in his written submissions, of sentencing the defendant to less than he would have received if he were in receipt of only the 209 g of ICE.

Conclusion

8.Having considered the calculations above, and both the mitigation advanced as well as the aggravating features of this case, including the latent risk and criminal record of the defendant, I consider an enhancement of 2 months for the latent risk factor and a further 3 months for the fact that the defendant has an extensive criminal record including trafficking would be appropriate in the circumstances of this case making a sentence after trial one of 14 years’ imprisonment.  I will not deduct any part of that sentence for self-consumption as the unverified assertions of the defendant as to his consumption indicate a negligible amount and this enterprise indicates a high turnover of product and therefore presumably regular re-supply of it in bulk.  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 9 years 4 months’ imprisonment.

Ms Claudia Ko, SPP, on behalf of the Department of Justice, for the HKSAR

Mr Stephen Wong, instructed by Messrs Au-Yeung, Cheng, Ho & Tin, assigned by the Director of Legal Aid, for the defendant