HKSAR v. Au Chun Ho

DCCC 1315/2023

[2024] HKDC 1022

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1315 OF 2023

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REASONS FOR SENTENCE

1.The defendant in this case has pleaded guilty to a single charge of trafficking in a dangerous drug, contrary to Section 4(1)(a)  of the Dangerous Drugs Ordinance, Cap 134.

2.The facts are simple.  On 3 January 2023 at about 12.49 am in the early morning of that day, the defendant seemed to act suspiciously outside No 10 Middle Road in Tsim Sha Tsui.  He was intercepted by police.  He behaved unusually, squatted down and then lay and started screaming and curled up his body and led to suspicion that the defendant had drugs in his possession.  The drugs, the subject of the charge, were seized at that time from the left pocket of the defendant’s jacket contained in various plastic bags, 17 plastic bags of cocaine and a further 5 small plastic bags of ketamine.  He was then arrested. He said he bought the drugs from an unknown male.  They were for his own consumption, he said.

3.The drugs found on the defendant had an estimated street value of $2,963 for the cocaine and $1,809 for the ketamine.  The defendant admits today that he was unlawfully trafficking in those particular drugs.

4.As far as the defendant’s background is concerned, that has been put forward in mitigation and can be seen from an antecedent statement, a criminal record.  The defendant has one previous conviction in 2019 for which he received a suspended sentence of one month for making persistent telephone calls.  It would appear not to be relevant to the sentencing today.  He has no previous drug convictions.  He is now aged 37.  He had Form 1 level education in Hong Kong and before his arrest he was working as a driver.  He had employment working as a coach driver. I am told he could earn between $22,000 to $25,000 per month depending on the season that he is employed in.  He had been living by himself.  Of course he has parents and he seems to have a good relationship with his father who is now here in court today.

5.As far as his mitigation is concerned, I am told he is remorseful, he regrets committing this crime and disappointing his family.  He prays in aid that it is his first ever drug-related conviction and I bear in mind that there are no previous convictions in determining the approach to sentence.

6.So far as the general approach to sentence is concerned, it can be found in a number of cases.  What is significant about this case is that I am dealing with a mixture or cocktail, as it is described, cocktail of drugs and the court’s approach can take two different forms described as the “individual” and “combined” approaches and the individual approach would be to look at each component drug that has been seized, determine the appropriate sentence for each and then add it up.  That often leads to an excessive sentence.  The combined approach involved the calculation of the sentence for the more or more serious drug in terms of potency then to take into account significant quantities of other less serious drugs.  In this case in terms of potency the drugs are similar and the cocaine would be determined to be the most potent drug.  The combined approach allows the court to take a more realistic and said to be fairer approach to sentencing.

7.Also the court must when determining sentence bear in mind whether the sentence is manifestly excessive and one looks at the case of HKSAR v Chung Yuk Leong at CACC 318/2013 which sets out three tests for checking if a sentence is manifestly excessive after it is determined under the combined approach and the three applicable tests are described as the “absurdity test”, the “conversion test” and the “ratio test”.

8.Also in another case from the Court of Appeal HKSAR v Herry Jane Yuseph which sets out a six step approach.  What is relevant to sentencing today is that that case enjoins the court to not make the sentencing simply a mathematical exercise calculating totals.  The sentence is discretionary, the guidelines are not straightjackets and the court must retain its discretion when determining the appropriate sentence.  The sentence must be individualised to the particular offender.

9.As far as the drugs I am dealing with here are concerned, they are governed by guideline sentencing the court must take that into account. Firstly, have a quantity of cocaine.  The guideline sentencing can be found in R v Lau Tak Ming, CACC 230/1989, which shows that for trafficking up to 10 grammes of cocaine it should attract a starting point of between 2 to 5 years’ imprisonment.  We are dealing here with cocaine of a narcotic quantity weight of 195 grammes.  That could lead to a sentence in the region, if approached mathematically, of about 30 months’ imprisonment, just over.  As far as ketamine is concerned, the tariff case is Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 or CAAR 7/2006.  Trafficking in ketamine from one to 10 grammes carries a sentence starting point of between 2 to 4 years’ imprisonment.  The narcotic value of the ketamine in this case is 2.32 grammes which could lead to a sentence of within the range of 18 months’ imprisonment. Clearly, taking the individual approach and adding those two sentences together would lead to a sentence that is manifestly excessive in the circumstances of this case.

10.I bear in mind that the cocaine is the more potent drug and I will take that as the base drug for sentencing today.  The starting point for this is determined within the guideline in a discretionary manner.  I note in respect of this defendant he has no previous convictions for drugs.  He is 37 years old so he is not a young man and he will have employment to go to when he is eventually released from prison.

11.As I have already noted, the mathematical approach for 1.95 grammes would be in excess of 30 months’ imprisonment.  I take into account, as I have said, the defendant has no previous convictions for dangerous drugs and has only one previous conviction and I take a baseline sentence based on the cocaine of 24 months’ imprisonment. 

12.To be added to this is the enhancement for the presence of the ketamine and also the fact that this is a cocktail of drugs.  For the outline of the mathematical figure would be in the region of 18 months’ imprisonment for the quantity of ketamine.  However again, this is a discretionary exercise and I will add 9 months to the existing baseline sentence of 24 months for the existence of the ketamine and the fact that this is a cocktail of drugs.  This now gives a starting point for sentence of 33 months’ imprisonment.

13.Taking into account the defendant has pleaded guilty and indicated a plea of guilt from an early stage, that would lead to a final sentence of 22 months’ imprisonment, one year and 10 months’ imprisonment.  I note in passing that the three tests, the conversion, ratio and absurdity tests would lead to a starting point for sentence in the region of 34 to 39 months so it would appear that my calculation would not lead to a manifestly excessive sentence.

14.So I will adopt that sentence of 22 months’ imprisonment as a final sentence and is the sentence of the court.