HKSAR v. Chow Chak Fung

HCCC 39/2023

[2024] HKCFI 78

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 39 OF 2023

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a single charge of “trafficking in dangerous drugs”, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Chapter 134. She admitted the facts pertaining to this charge in a court below. This morning, she confirmed her guilty plea and admission of the Summary of Facts before me and I convict her as charged accordingly.

2.The subject matter of the charge concerns 80.5 grammes of a mixture containing 45.6 grammes of heroin hydrochloride, 87.77 grammes of a solid containing 75.55 grammes of cocaine, and 249 grammes of a solid containing 214 grammes of ketamine. 

The Summary of Facts

3.I will simply adopt the Summary of Facts as follows:

“1. This is a case of Trafficking in Dangerous Drugs ("TDD").

2, At about 4:30 a.m. on 14 July 2021, Police officers including PC23532 ("PW1")  and PC60072 ("PW2")  set up a road block near Lamppost No. FB3018A, No. 372, Sha Tsui Road, Tsuen wan, At about 4:39 a.m., they stopped a private vehicle with registration number WB1909 ("the Vehicle"). At that time, Male WONG Chi-hang ("Wong")  was the driver and D was sitting in the front passenger's seat respectively. D was carrying a handbag ("El")  and looked newous.

3. Feeling suspicious, PW1 instructed D to get off the Vehicle. Upon search, PW1 found from an inner pocket of El two resealable plastic bags containing suspected DD ("E2-3"). Under caution, D admitted that El-3 and the drugs in the black recycled bag inside the Vehicle all belonged to her and had nothing to do with Wong. PW1 then further found a black recycled bag ("E4")  on the floor in front of the front passenger's seat of the Vehicle. Inside E4, in total 147 resealable plastic bags containing suspected DD ("E5, E7, E10, E13, E17 and E19-22")  were found. Under caution for TDD, D repeated that the DD belonged to her and Wong had nothing to do with the same. No other suspicious items were seized from the Vehicle.

4. D was arrested and taken back to the Police station. The Police further found cash of HK$42,407 from El. When the Police was weighing the DD seized, they found from another inner pocket of El two resealable plastic bags containing in total of 116 resealable plastic bags containing suspected DD ("E23-24"). D was further cautioned. Under further caution by PW 1, she repeated that the DD belonged to her and had nothing to do with Wong.

5. E2-3, E5, E7, E10, E13, El7 and El9-24 were subsequently examined by the Government Laboratory and found to contain in total 80.5 grammes of a mixture containing 45.6 grammes of heroin hydrochloride; 87.77 grammes of a solid containing 75.55 grammes of cocaine; and 249 grammes of a solid containing 214 grammes of ketamine.

6. The Police subsequently took a Video recorded interview with D. Under caution, D stated inter alia that: -

(a)  In the evening on 13 July 2021, while she was taking drugs, she met a male named Ah Wai who offered DD for consumption and she could pay him later: She agreed and gave Ah Wai a SIM card;

(b)  She only knew Ah Wai's nickname;

(c)  At about 03:30 a.m. on 14 July 2021, she received a call from Ah Wai who told her to go to a park where she found E4 in the bush;

(d)  Wong was her friend for about four years. Since she was carrying the DD, she made an excuse to Wong for having food together and therefore Wong came out to find her;

(e)  Later, she got into Wong's car at Cheung Hang Estate;

(f)  She did not tell Wong that she was carrying the DD;

(g)  She intended to rent a guesthouse room to store the DD for her own consumption;

(h)  She knew E4 had contained Cocaine, Ketamine and Heroin;

(I)  The DD in El was given to her by Ah Wai about three months ago and was solely for her own consumption too;

(j)  The cash of HKD$42,407 found from her upon arrest was her own savings. She thought she needed to pay Ah Wai that day. However, Ah Wai said she could pay him later; and

(k)  She did not have any means to contact Ah Wai.

7. On 14 July 2021, near Lamppost FB3018A, No, 372, Sha Tsui Road, Tsuen Wan, New Territories, Hong Kong, D unlawfully trafficked in dangerous drugs, namely, 80.5 gammes of a mixture containing 45.6 grammes of heroin hydrochloride; 87.77 gammes of a solid containing 75.55 grammes of cocaine; and 249 grammes of a solid containing 214 grammes of ketamine.”

Antecedent and Criminal Records

4.Defendant is 45 years old and was born in the mainland.  She was educated up to Form 1 level in Hong Kong.  She was unemployed at the time of the offence but I was told she used to work as a hairstylist.  She is still single and she lives alone in a public housing estate in Tsing Yi before she was arrested.  She is a drug addict since 14 years old. 

5.In the past, she appeared in court in no less than eight occasions involving 14 previous convictions between 1994 and 2018.  Altogether she had two “possession of dangerous drugs” record, one “possession of Part I poison” record and also three “trafficking in dangerous drugs” records.  Her last conviction in 2018 is a “trafficking in dangerous drugs” conviction and she was sentenced to 44 months’ imprisonment in the District Court. 

Mitigation

6.Mr Adonis Cheung, counsel for the defendant, told me that the defendant committed the present offence for monetary greed owing to her addiction and also being unemployed.  The defendant expresses that she is feeling extremely regret which is reflected in her early plea in the court below for which she is entitled to the customary one-third reduction in sentence. 

Sentencing Principle and Tariffs

7.It is well-established that “trafficking in a dangerous drug” is of course a very serious offence.  In the Court of Appeal case of Herry Jane Yusuph [2021] 1 HKLRD 290, Macrae VP reaffirmed that for this offence, personal circumstances were of far less important than the sentencing principles of denunciation, deterrence and punishment.  In sentencing, I shall follow the six-step approach enunciated in the case of Herry Jane Yusuph. 

8.The first step is to assess the gravity of this offence.  In this charge, there are three different types of drugs involved in this case, namely heroin, cocaine, and ketamine. 

(i)  Heroin and Cocaine

9.Cocaine and heroin are equated for the sentencing purposes and the tariff is fixed for heroin in Lau Tak Ming [1990] 2 HKLR 370 as modified in Abdallah [2009] 2 HKLRD 437, also applies to cocaine. 

10.According to the sentencing guideline for the total quantity of 121.12 grammes of both heroin and cocaine, that is 45.6 grammes plus 75.55 grammes, the defendant is in the band of 50 grammes and 200 grammes where the starting point for traffickers after trial subject to any enhancement is 8 to 12 years’ imprisonment. 

(ii)  Ketamine

11.The sentencing guidelines for trafficking in ketamine are found in the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  According to the sentencing guidelines, for the quantity of 214 grammes of ketamine, the defendant is in the band of 50 grammes and 300 grammes, where the guideline starting point for traffickers after trial, subject to any enhancement, is 6 to 9 years’ imprisonment. 

12.The second step is to assess the defendant’s role and culpability based upon the evidence.  As was held in Herry Jane Yusuph at paragraph 9:

“The guideline for trafficking in dangerous drugs are based upon the courier or storekeeper, that is the person who is delivering, distributing, or conveying the drugs in question for a dealer, or storing the consignment of drugs on behalf of himself or someone else.”

13.Consequently, it will not be possible to properly apply the guidelines until the court takes a view of the role and the culpability of the defendant. 

14.The third step is to identify where in the relevant band the defendant comes, bearing in mind it might be necessary to go outside the band, whether above or below, given the circumstances of the offence and the role of the defendant. 

15.The assessment made in the second step is relevant in determining where within the band or outside the band the defendant comes.  The Court of Appeal reaffirmed that the bands were for the least culpable of drug traffickers and couriers fall into this category.

16.The facts of this case reveal that the defendant was intercepted by the police in a road block when she was a passenger in the front seat of the vehicle and carrying with her a handbag and a recycle bag which contained the dangerous drugs in the charge.  Under caution, the defendant told the police she was just instructed to pick up the dangerous drugs in a bush inside a park.  Based on the above, I will sentence the defendant in accordance with the guidelines as if the defendant is simply a courier or a storekeeper. 

Overall Starting Point

17.In determining the proper overall starting point, I have reminded myself of the sentencing principle for trafficking in a cocktail of drugs.  There are three means of cross-checking the appropriateness of the overall starting point in the case of a trafficking involving different types of dangerous drugs (see the case of Yip Wai Yin [2004] HKEC 819 and Chan Yuk Leong [2014] HKLRD (Yrbk)  325).  I have directed counsels for the prosecution and defence before the hearing today to do the calculations and what come out in the result are indeed very similar although not exactly the same. 

18.After taking into account the calculation made by Mr Kong, Senior Public Prosecutor, and Mr Cheung on behalf of the defendant, I set out below the different starting points in accordance with the sentencing guideline in the so called absurdity test, conversion test, and the ratio test respectively. 

Absurdity Test

19.If all the dangerous drugs were converted into heroin and cocaine, there would be a total of 335.15 grammes of heroin/cocaine.  According to the guideline in Lau Tak Ming (supra.), the relevant starting point should be 14 years. 

Conversion Test

20.According to Hii Siew Cheng (supra.), the starting point for trafficking in 214 grammes of ketamine should be 8 years, which is equivalent to trafficking 50 grammes of heroin/cocaine.  Converting the 214 grammes of ketamine into 50 grammes of heroin/cocaine and adding it to the remaining 121.15 grammes of heroin/cocaine, the defendant is effectively trafficking 171.15 grammes of heroin/cocaine in the present case.  Applying the guideline in Lau Tak Ming (supra.), the relevant starting point should be 11 years and 3 months. 

Ratio Test

21.The quantity of heroin/cocaine and ketamine in relation to the total quantity of dangerous drugs has a ratio of 0.361 and 0.639 respectively, producing a respective starting point of 60.7 months and 31.7 months, making a total starting point of 132.4 months or 11 years and 12 days. 

22.As stated in the above, to sentence the defendant on the individual approach will produce a sentence which will be too high and does not properly reflect the justice of the case.  To achieve a reasonable and realistic sentence, I will adopt the combined approach which involves an upward adjustment from the starting point of the base drug. 

23.While the total amount of the heroin/cocaine represented only about 36% of the total drugs, heroin/cocaine was the more or most serious drug in terms of potency.  I will use heroin/cocaine as the base drug to calculate the starting point. 

24.According to the sentencing guidelines for 121.25 grammes of heroin/cocaine, the starting point is 9 years and 11 months’ imprisonment.  In determining the upward adjustment for the remaining 214 grammes of ketamine, I examined the overall starting point by checking it against the result of three tests, the absurdity test is 14 years, the conversion test, and the ratio test produced similar result which is close to 11 years with a difference of less than 3 months.  The results are all based on pure arithmetical calculation.  After consideration, I shall adopt a starting point of 11 years’ imprisonment. 

25.In determining the appropriate overall starting point, I also take into account the role and the culpability of the defendant.  As said, I consider the role of the defendant to be only a courier or a storekeeper.  So I will not increase the starting point on account of the role played by the defendant. 

26.The fourth step requires me to consider whether there are any aggravating factors which might require me to enhance this starting point.  As already noted, the trafficking involves three different types of dangerous drugs here.  In Chan Yuk Leong (supra.), at paragraph 23 to 25, it was said that the fact that the seizure of the two or more types of dangerous drugs at the same time, even though separately packed and not in a prepared mixture, may lead to two possible aggravating features.  One is the ability of the trafficker to cater for a wider market than the trafficker of only one kind of drug.  More important is the effect on users of the combination of the dangerous drugs. Therefore, because of this I will enhance the starting point by 3 months to 11 years and 3 months. 

27.Also, as revealed from his record, the defendant is a repeated offender.  Prior to this present offence, she has already three previous convictions in “trafficking in dangerous drugs”.  Although it is said by the defence that the first two convictions were already back in 2005, but the third conviction was her last conviction which was more recent and it was in August 2018 when she was sentenced to 44 months in the District Court and she was released in March 2020. 

28.In my judgment, apparently the previous sentences imposed by the courts failed to deter her from committing further trafficking offences.  In the circumstances, I will still enhance the sentence by a further 9 months and bringing it to 12 years’ imprisonment. 

29.Fifth, I am required to have regard to all mitigating factors as the Court of Appeal made clear in Herry Jane Yusuph (supra.)  in cases of “trafficking in a dangerous drug”, personal circumstances will count little unless they are very exceptional. 

30.Mr Cheung in his mitigation has said all that he can say on behalf of the defendant and he had sensibly accepted that there are no exceptional mitigating circumstances concerning the defendant in this case to afford a further discount on sentence apart from the defendant’s timely and early plea of guilty at the committal stage. 

31.The real mitigating factor in this case is therefore the defendant’s timely plea. I will therefore give the full one-third discount to the defendant.  The overall starting point is therefore reduced finally to a term of 8 years’ imprisonment. 

32.The sixth and the final step is to stand back and look at the overall sentence.  In my judgment, this 8 years’ imprisonment is a fair, just, and balanced sentence in all the circumstances of the offence and the offender, and there is no other reason existing to further adjust the sentence that I seek to impose. 

Order

33.Based on the above reasons, the final sentence I would impose on the defendant is therefore 8 years’ imprisonment. 

Mr Glen Kong, SPP of the Department of Justice, for HKSAR

Mr Cheung Kam-wing Adonis, instructed by Ernest Tang, Solicitors, assigned by DLA, for the accused