HKSAR v. Lui Wai Yin

DCCC 195/2023

[2023] HKDC 1841

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 195 OF 2023

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REASONS FOR SENTENCE

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1.The Defendant (D)  pleaded guilty to a charge of trafficking dangerous drugs:-

(a)  24.79 grammes of a solid containing 19.45 grammes of cocaine and

(b)  24.63 grammes of a solid containing 20.52 grammes of ketamine.

Summary of facts

2.At around 01:08 hours, on 10 September 2022, the police intercepted D who was sitting on the driver seat.

3.The police conducted a search of the vehicle and found the dangerous drugs in the present case.

4.The police searched the vehicle in D’s presence and found the dangerous drugs of the present case.

5.At 01:15 hours, PC 19271 arrested D for trafficking in dangerous drugs. Under caution, D admitted that he had hidden the ketamine and cocaine in the glovebox under the steering wheel and they were for his own consumption.

6.Upon further search, cash of HK$1,500 was found in the storage compartment below the control panel of V1, while a mobile phone and cash of HK$7,343 were found the dangerous drugs in the present case.

Cautioned Video-recorded Interview

7.D admitted in his cautioned video-recorded interview on 11 September 2022 that:-

(1)  D rented the vehicle from a car rental company for a monthly rent of around HK$8,000 to HK$9,000.

(2)  The HK$1,500 cash found in the car and HK$7,343 cash found on D belonged to him.

(3)  D is a part-time construction worker earning around HK$15,000 to HK$16,000 per month.

8.The estimated street value of the dangerous drugs is around HK$50,652.

Criminal record

9.He has a clear record.

Background

10.The D is 24 years old, divorced with a 3 years old child who is living with his ex-wife.

Sentnence

11.There were 2 types of dangerous drugs in the present case, they were cocaine and ketamine.

12.The sentencing guideline for cocaine can be found in R v Lau Tak Ming [1990] 2 HKLR 370, trafficking in a narcotic content of 19.45 grammes of cocaine calls for a sentence of 5 years and 9 months.

13.As to ketamine, the case of SJ v Hii Siew Cheng [2009] 1 HKLRD 1 applies, for a narcotic content between 10 to 50 grammes, it falls into the sentencing bracket of 4 to 6 years.

14.In the present case, trafficking in a narcotic content of 20.52 grammes of ketamine attracts a sentence of 4 years and 6 months.

15.Since the individual approach will result in an oppressive sentence, it is appropriate to take the combine approach for the present case.

16.As the Defence agreed that cocaine is more potent than ketamine, the calculation of the 3 tests should take cocaine as the base drug.

17.The defence and the prosecution agree the result of the calculations for the 3 tests are: -

(a)  The absurdity test is 86.97 months (7 years 3 months);

(b)  The conversion test is 76.07 months (6 years 4 months); and

(c)  The ratio test is 76 months (6 years 4 months)

18.Taking into account of the above calculation’s, I take 5 years 9 months as the starting point and increase the starting point by 7 months to take into account of the amount of Ketamine, it becomes 6 years 4 months.

19.Now I come to deal with the level of enhancement.

20.As we have discussed during the mitigating advanced by the Defence that there are aggravating factors in the present case, I referred to HKSAR v Choy Wing Sing [2022] HKCA 381: -

(a)  The trafficking involved 2 types of drugs which would have catered for a wider market;

(b)  Ketamine is commonly used with another drug to prolong its effect; and

(c)  The drugs were contained in many packets ready for distribution to a large number of users.

21.I considered the starting point should be enhanced by 2 months

22.The sentence is now arrived at 6 years 6 months (6 years 4 months + 2 months), given 1/3 discount, the sentence is reduce to 4 years 4 months.