HKSAR v. Ramos Iii Franciz

HCCC 79/2023

[2023] HKCFI 2890

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 79 OF 2023

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 2 counts of trafficking in dangerous drugs[1] before Magistrate Mr. Lam Tsz Kan, admitted to the summary of facts, and was on 27 March 2023 committed to the Court of First Instance for sentence. Before me, the defendant confirmed the above and was duly convicted.

2.Particulars of count 1 are that the defendant on 11 November 2021, at 4^th floor, Hung Yip Building (“the Building”), Nos.234-236 Wan Chai Road, Wan Chai, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 17.95g of a solid containing 14.5g of cocaine and 201.67g of a solid containing 167.39g of ketamine.

3.Particulars of count 2 are that he on the same day, at Room A, Flat D (“the Flat”), 4^th floor, Hung Yip Building, Nos.234-236 Wan Chai Road, Wan Chai, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 47.67g of a solid containing 38.33g of cocaine and 339.3g of a solid containing 260.89g of ketamine.

SUMMARY OF FACTS

Count 1

4.At around 4pm on the charge date, the defendant was intercepted upon coming out of the Flat by Police officers conducting an anti-narcotics operation in the Building.

5.3 black plastic bags containing 244 transparent re-sealable bags with either “2” or “5” written on the packings were found in the black rucksack that the defendant was carrying. Subsequent examination by the Government Chemist confirmed the contents inside the plastic bags as the narcotic contents particularized in count 1.

6.The defendant was arrested and cautioned.

Count 2

7.Police officers used a key found on the defendant to enter the Flat, which was sub-divided into 4 rooms A to D. Police officers used another key found on the defendant to unlock the door of Room A, which was about 100 square feet and had a toilet.

8.A search warrant was executed and 502 transparent re-sealable plastic bags containing the particularized drugs in count 2 were found inside some other re-sealable plastic bags that were on the floor. On some of the plastic bags were written “35 rows of fingers”, “118 small 56 medium”, “A1”, “A2”, “2” etc.

9.There were also 2 metal bowls, a plastic spoon, 3 electronic scales, 1 box of multiple re-sealable plastic bags, a pair of scissors, 2 sealers, 2 markers, a pile of black plastic bags, a lighter, 2 brown paper bags containing more re-sealable plastic bags in different sizes on a wooden desk inside Room A.

10.The defendant was arrested and cautioned.

11.In the subsequent video recorded interview conducted on 12 November in the presence of the defendant’s mother, the defendant said under caution that he had come to know a 60 odd year old man, ‘M’, in a park who had asked if he wanted to earn some quick money. The defendant agreed to do so to help out his family members who were in financial difficulties.

12.Only M could call the defendant and the calls were always without caller display.

13.On the day of his arrest, M had called the defendant and told him to take 3 bags of the drugs for distribution. The defendant arrived at the Building at around 2:30pm and used the keys left at Room A’s entrance by M to enter. The defendant was on his way with the drugs in his rucksack to Tsim Sha Tsui, where M will call to tell him who to give the drugs to. The defendant was not sure how much he would receive from M on this occasion, but M had given him $3,000 to $4,000 before.

14.The combined quantity of dangerous drugs in the two counts is 52.83g of cocaine and 428.28g of ketamine, with respective street values of $114,704 and $362,991 (total being $477,695)  as at November 2021.

15.The defendant admitted to unlawfully trafficking in the dangerous drugs found on his person as well as in Room A of the Flat.

PREVIOUS CONVICTION

16.The defendant is of previously clear record.

BACKGROUND AND MITIGATION

17.The defendant was born in Hong Kong in January 2004 and is 19. He was 17 years and 10 months old at the time of the offences, and was a Form 4 student with above average grades.

18.The defendant’s father deserted the family when he was 6, and his grandmother became the sole bread winner, paying for the living expenses, school fees and rental for the defendant, his younger brother and sister. The defendant’s mother did not work regularly and had at some point been incarcerated.

19.Shortly before the offences, the defendant’s grandmother was made bankrupt because of unpaid loans. The family had to rely on money borrowed from friends and relatives, as well as on government subsidies and comprehensive public assistance and allowance.

20.As a result of the financial hardship, the defendant became depressed and was uncertain about his future. He was always anxious about money and wanted to help his family.

21.It was when the defendant attended the Youth Centre in Sai Wan Ho for welfare assistance that he was approached by ‘M’, luring him with quick money. The defendant did not appreciate the seriousness of what he had agreed to do, blinded mostly by his desperate desire to help his family. He felt compelled to do what he could to contribute to the family, which is what he had done with all the money that he had gotten from drug related activities.

22.Mr. Sherry submitted that the defendant’s role was clearly a low-level courier, and that he had been groomed by an older person to move the drugs for him.

23.The defendant wrote in mitigation, telling the court how he has gained great deal of insight during his present remand, realized the seriousness of his conduct and is truly remorseful. He will try to make the best out of a bad situation by continuing with his studies and learning new skills so as to enable him to earn a living after his release to support his grandmother and family.

SENTENCE

24.The maximum sentence on conviction upon indictment for trafficking in dangerous drugs is that of life imprisonment and a fine of $5 million.

25.Trafficking in dangerous drugs is an excepted offence and as such the restriction on imprisonment of persons between 16 and 21 under s.109A of the Criminal Procedure Ordinance, Cap.221 does not apply.

26.The steps of sentencing set out in the case of HKSAR v Herry Jane Yusuph [2020] HKCA 974 are applicable and followed.

27.The combined quantity of dangerous drugs in the two counts is 52.83g of cocaine and 428.28g of ketamine. Given the circumstances of the defendant’s possession of the drugs and unlawful trafficking, I find that it is appropriate to consider the overall sentence by combining the quantity of narcotic contents found on the defendant just outside the Flat with those found inside.

28.The applicable tariff band for trafficking in 52.83g of cocaine according to R v. Lau Tak-ming and others [1990] 2 HKLR 370 and Attorney General v. Pedro Nel Rojas [1994] 2 HKCLR 69; [1994] 1 HKC 342 is the “8 to 12 years” band.

29.The applicable tariff band for trafficking in 428.28g of ketamine according to Secretary for Justice v. Hii Siew-cheng CAAR 7/2006 is the “9 to 12 years” band.

30.Although the defendant did admit under caution that he was to bring the drugs to others, there is insufficient evidence to suggest that he was involved directly in the selling of the drugs such as negotiating the price or quantity. I find that the defendant was a mere courier. As such, the arithmetical approach towards the tariff sentences is to be adopted. The notional starting points are, therefore, that of 97 months and 123 months for the cocaine and ketamine respectively.

31.Since more than one type of drugs was trafficked, I will adopt the combined approach as set out in HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367 and HKSAR v Islam S M Majharul [2020] HKCA 300 in arriving at the appropriate sentence with the help of the following tests.

THE ABSURDITY TEST

32.If all the narcotics are converted into the more potent drug cocaine, the sentence would be 17 years (204 months). Any sentence above this would be considered absurd.

THE CONVERSION TEST

33.Since cocaine is the more potent drug, the ketamine will be the drug to be converted.

34.133g of cocaine would attract a tariff sentence of 123 months, which is the tariff sentence for 428.28g of ketamine. If the converted 133g of cocaine is added to the original 52.83g of cocaine, the total converted quantity of 185.83g of cocaine would have a tariff sentence of 11 years and 7 months (139 months).

THE RATIO TEST

35.Based on the proportion of the two types of drugs, the sentence should approximately be 11 years and 6 months (138 months)

THE COMBINED NOTIONAL STARTING POINT

36.Having considered all the test results and the circumstances of the case, I would adopt a notional starting point of 138 months’ imprisonment for the combined quantity of narcotics.

AGGRAVATING FACTOR

37.It is trite law that trafficking in more than one type of dangerous drugs is an aggravating factor. For this, I would enhance the notional starting point by 3 months’ imprisonment, taking it to 141 months’ imprisonment.

MITIGATING FACTOR

38.Despite Mr. Sherry’s able submissions, I find that the age of the defendant at the time of his commission of the offences could not be considered to be in the extreme youth category, and as such cannot be a mitigating factor in a crime as serious as trafficking in dangerous drugs.

39.In HKSAR v Pau King Kong [2013] 3 HKLRD 676; CACC 465/2012, the applicant was 17 at the time of the offences and 18 at the time of sentence. The Court of Appeal held that he did not fall into the category of extreme youth:

“46. This Court has said on many occasions that in drug cases no regard can be had to youth except extreme youth and this applicant does not fall into that category...”

40.As much as I may sympathize with the defendant’s personal circumstances, it is trite law that they are not given much weight in sentencing for serious offences.

41.Having said that, I am impressed by the defendant’s diligence during his remand awaiting sentence. I am told that he had completed a Construction Safety Course and been issued a Green Card that would allow him to work at a construction site; that he had completed a Vocational Training Council course and is now qualified to be employed as a Catering and Sanitary Manager at eateries; and that he had taken up a course in Buddhism to try to better understand the meaning of life.

42.For his diligence, I will exercise my discretion and grant him an extra 6 month’s reduction in the final sentence.

43.The defendant had entered timely guilty pleas, for which he is given the full one-third discount, leading to a sentence of 7 years and 10 months’ (94 months)  imprisonment before applying the discount for his diligence. The final discounted sentence is, once applied, 7 years and 4 months’ (88 months)  imprisonment.

44.Lastly, I apply the totality principle to ensure that the overall sentence is not unfairly or unjustly crushing or oppressive.

45.Although it is hard to imagine a sentence such as this would not have a crushing effect on a defendant of this age, the sentencing authorities are clear and the exercise of my sentencing discretion must be within the ambit so set, in order that there be consistency in sentencing and to avoid any sense of unfairness in other similar offenders.

46.The key words in applying the totality principle are ‘unjustly’, ‘unfairly’ and ‘oppressive’. The sentence I intend to impose follow well established sentencing guidelines, which have been applied in numerous similar cases. It cannot be said that there is any unfairness or that the sentence is unjust.

47.Oppressive is defined as “treating people in a cruel and unfair way and not giving them the same freedom, rights, etc. as other people” in the Oxford Learner’s Dictionaries. For the same reason that the sentence has been arrived at through the application of generally applied legal principles, the defendant has not been treated cruelly or unfairly, and the sentence is not oppressive.

CONCLUSION

48.To achieve the final combined sentence of 88 months’ imprisonment for the 2 counts, the defendant is, first of all, sentenced to 63 months’ imprisonment for count 1, and 76 months’ imprisonment for count 2 after plea.

49.I order that 25 months of the sentence in count 2 to be served consecutively to the sentence of count 1, the balance concurrently.  The final sentence have already taken into consideration the aggravating factor of the defendant trafficking in multiple drugs.

50.Although this approach to the sentences is slightly artificial in the sense that they are ordered to be served in such a way so as to achieve the overall desired sentence, the individual sentences are still based on the relevant sentencing guidelines using the combined approach with the relevant test results examined.

51.The total final sentence for the 2 counts is, therefore, 7 years and 4 months’ (88 months)  imprisonment after plea.

Mr. Marcus LEE, Senior Public Prosecutor, of the Department of Justice, for the Prosecution

Mr. James SHERRY, instructed by Messrs. Ernest Tang, Solicitors assigned by DLA, for the Defendant