HKSAR v. Law Chi Fung

DCCC 1019/2022

[2023] HKDC 1647

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1019 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant is convicted on his own plea and agreement to Amended Summary of Facts of a charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

Facts

2.At about 0030 hours on 10 June 2022, police intercepted the defendant’s vehicle on Anchor Street (Eastbound)  near Tong Mi Road.  The defendant was seen acting furtively on the driver’s seat.  Upon search, a total of 129 small transparent resealable plastic bags containing dangerous drugs were found on various locations in the vehicle, including inside the offside front car door compartment, inside the left storage box of the driver’s seat, and inside the cup holder between the driver’s seat and the front passenger’s seat. 

3.The defendant was arrested for trafficking in dangerous drugs.  Under caution, he admitted that he was helping someone to carry the stuff, and that the drugs retrieved from the cup holder between the driver’s seat and the front passenger’s seat was for his own consumption. 

4.2 mobile phones, 3 SIM cards and cash of HK$18,367.50 were found on the defendant. 

5.In subsequent video-recorded interview, the defendant said under caution that he would be given monetary award after delivery of the drugs. 

6.Government Chemist subsequently certified that the drugs in question totalled 74.78 grammes of ketamine and 9.47 grammes of cocaine. 

7.Estimated street value of these drugs was over HK$52,000.

8.At the material time, the defendant was in possession of the drugs seized for the purpose of unlawful trafficking. 

Criminal Record

9.The defendant had a previous conviction of possession of dangerous drugs for which he was fined HK$1,000 on 19 January 2004. 

Mitigation

10.Defence counsel conceded that the sentencing authority for trafficking in ketamine is Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, and that the sentencing authority for trafficking in cocaine is Attorney General v Pedro Nel Rojas [1994] 2 HKCLP 69.  He said that under the ratio test, following the sentencing guidelines for the drugs in question, the sentencing starting point for trafficking in these drugs would be 72.47 months’ imprisonment. 

11.He submitted that the only aggravating feature in this case is the fact that there are two types of drugs involved. 

12.He urged this court to give the defendant a sentencing discount by reason of his early guilty plea.  

13.Defence counsel submitted to court mitigation letters from the defendant’s wife, former employer and friend.  These mitigation letters said the defendant is a good father and a good employee.  He is also a kind-hearted person, always helpful to friends in need.  It is said that the defendant’s income was steady except during COVID times, which led him to resort to the foolish decision of committing the offence in question for monetary reward.  It is said that the defendant is now deeply remorseful and would not reoffend upon his release from prison.  Mitigation letters from his former employer vows to reemploy the defendant on his release.  They all asked the court for leniency for the defendant.  

Discussion

14.Before sentencing, this court has carefully considered all that was advanced on behalf of the defendant, including the mitigation letters. 

15.On conviction upon indictment of this charge, the maximum sentence is a fine of HK$5 million and imprisonment for life. 

16.Trafficking in dangerous drugs is a very serious offence.  In the usual circumstances, it is well established that personal background and circumstances is not considered a valid mitigating factor.  Likewise, committing the offence by reason of financial difficulty or for financial reward is not a valid mitigating factor. 

17.In this case, the drugs involved is 74.78 grammes of ketamine and 9.47 grammes of cocaine, total 84.25 grammes.  The court considers most appropriate to adopt the ratio test in deciding the sentencing starting point.  Cocaine represents 11% of the total drugs in question whereas ketamine represents 89% of the total drugs in question. 

18.Had all the drugs trafficked been cocaine, the sentencing starting point would be 106.96 months’ imprisonment.  Had all the drugs trafficked been ketamine, the sentencing starting point would be 76.93 months’ imprisonment. Applying the ratio test, the sentencing starting point would be 80.22 months’ imprisonment. 

19.Initially, defence counsel submitted that all cocaine seized would be the defendant’s own consumption.  After this court indicated that the court was not prepared to accept that contention, defence counsel indicated that they would not proceed to Newton hearing and would withdraw the contention upon instructions. 

20.It is well established also that where there are more than one type of drugs involved, the same constitutes an aggravating feature in sentencing.  In this case, the court will enhance the sentencing starting point by 3 months’ imprisonment, taking the sentencing starting point to 83.22 months’ imprisonment. 

21.The defendant has pleaded guilty which is the most valid mitigating factor.  He is entitled to full one-third sentencing discount. 

22.He is therefore sentenced to 55 months and 14 days’ imprisonment for this case.