HKSAR v. Lam Yu Wing

HCCC 47/2024

[2025] HKCFI 1210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 47 OF 2024

________________________

________________________

_________________________________

REASONS FOR SENTENCE

_________________________________

The Charge

1.On 19 February 2024, the defendant pleaded guilty in the magistracy to one count of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134.  The count involved 64.13 grammes of a solid containing 47.43 grammes of cocaine, and 12.57 grammes of a solid containing 9.89 grammes of ketamine.  On the same day, the defendant admitted a Summary of Facts dated 12 January 2024 and he was committed to the Court of First Instance for sentencing.  Today, before this Court the defendant confirmed his guilty plea to the trafficking count and his admission of the Summary of Facts.

Facts Admitted

2.The facts of the case can be summarized as follows. 

3.On 15 May 2022, the defendant was intercepted by the police when he was seen walking towards the subject premises in an industrial building in Tsuen Wan.  A key to the premises was found on his person.  With his key, the police entered the premises and found there the dangerous drugs in question.  There were altogether 250 resealable plastic bags containing the cocaine and 37 resealable plastic bags containing the ketamine.  The police also found two electronic scales, a heat sealing machine, a plastic spoon, a large number of resealable plastic bags, a pair of scissors and a glove.  The defendant was therefore arrested.  Under caution both at the scene and in the subsequent cautioned interview, the defendant remained silent.

4.The premises had been rented by the defendant from 2 April 2022.  The CCTV of the industrial building had captured the defendant entering and leaving the premises frequently in the period between 10 and 15 May 2022.

5.The estimated market price of the ketamine seized was HK$5,958, whereas that of the cocaine seized was in the range of HK$58,230 to HK$86,319.

6.The defendant admitted that at all material times, he had unlawfully trafficked in the dangerous drugs found inside the premises.

Background and Mitigation

7.The defendant was 21 years old at the time of the offence and he is now 24 years old.  He has received up to Form 3 education and is single.  Before the offence, he had worked as a construction site worker earning about $23,000 per month, but at the time of his arrest, he was unemployed as he had lost his job due to Covid.  He has one previous conviction unrelated to dangerous drugs, and it was for two offences of criminal damage which were dealt with in the magistracy in 2019. 

8.Through his counsel, the defendant has submitted three letters to the Court in mitigation.  One of them was written by the defendant himself, expressing remorse for the offence and for failing his filial duty when his grandfather and father passed away in turn during his remand in custody.  Another letter was written by the defendant’s mother, in which the defendant was described to be an obedient son, highly responsible, and he had only committed the offence due to the influence of bad peers.  The last letter was written by a social work who spoke well of the defendant and of his willingness to take up courses to equip himself whilst being remanded in custody.

9.As for the sentence, Ms Cindy Kong, counsel for the defendant, accepted that using the conversion test, the starting point for sentence should be around 97 months of imprisonment.  She submitted that the role of the defendant was just a courier.  She accepted that other than the guilty plea, the defendant has no other strong mitigating factor.  As this is the defendant’s first conviction in relation to dangerous drugs, she asked for a lenient sentence to be imposed on the defendant.

Sentence

10.In sentencing the defendant, I will consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, bearing in mind also the Court of Appeal’s guidance in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.

11.The first step is to identify the relevant guideline band applicable to the quantity or quantities of the dangerous drugs in question.  In the present case, there are two types of drugs being involved, namely cocaine and ketamine, with cocaine being of the larger quantity.  When more than one type of dangerous drugs are involved in a trafficking offence, the court will adopt a combined approach in sentencing. As explained in HKSAR v Chan Yuk Leong, CACC 318/2013, there are three means of cross-checking whether a sentence is manifestly inadequate, namely, the absurdity test, the conversion test and the ratio test. 

12.In the circumstances of this case, I find the conversion test to be the more appropriate and fair basis to take as the combined approach to sentencing the present case.

13.Among the 2 types of dangerous drugs involved, the quantity of cocaine is larger.  The court is of the view that it should be used as the dangerous drug for determination of the starting point, which should then be adjusted upwards by reason of the other type of dangerous drugs seized.

14.The quantity of cocaine in the present case is 47.43 grammes.  The starting point for trafficking in 10 to 50 grammes of cocaine is 5 to 8 years imprisonment.

15.The quantity of ketamine in the present case is 9.89 grammes.  In terms of sentencing, that quantity of ketamine is equivalent to about 6.59 grammes of cocaine.

16.In light of this conversion, the total amount of cocaine in the present case becomes 54.02 grammes.  For trafficking in 50 to 200 grammes of cocaine, the relevant guideline band is 8 to 12 years imprisonment.  54.02 grammes of cocaine therefore carries a starting point of about 97 months imprisonment which the court will use as the basic starting point in the present case.

17.The second step is to assess the role and culpability of the defendant based upon the evidence before the court.  The premises were rented by the defendant himself and he had the key to the premises.  He had frequented the premises in the period from 10 to 15 May 2022 before his arrest.  The two types of dangerous drugs were found contained in a total of 287 resealable plastic bags, together with two electronic scales, a heat sealing machine, a plastic spoon, a large number of resealable plastic bags, a pair of scissors and a glove.  In my assessment, the premises were clearly used by the defendant for storing and packaging the dangerous drugs.  As Mr. Justice McWalters (as he then was)  stated in HKSAR v Islam Shafiqul, CACC 210/2019 (unreported)  at para. 31, the greater involvement in drug trafficking warrants a higher starting point. 

18.The third step is to decide where within the relevant guideline band the defendant should come.  In my assessment, the defendant’s role is more involved than that of a mere courier or storekeeper.  For that reason, the appropriate starting point reflecting his greater role or culpability should be enhanced by 2 months, making it 99 months’ imprisonment.

19.The fourth step is to deal with aggravating factors, if any.  The defendant’s one previous conviction is unrelated to dangerous drugs and I shall disregard it.  However, it is an aggravating factor for an accused to traffic in more than one kind of dangerous drugs “because in such a situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug.” (See HKSAR v Yim Hung Lui Ricky, CACC 266/2011, and HKSAR v Islam Azharul [2020] 1 HKLRD 644).  For this reason, I will enhance the starting point by 3 months.

20.The 5^th step to take into account the mitigating factors. I do not regard the defendant’s personal or family circumstances as any mitigating factor. As accepted by Ms Kong, counsel for the defendant, the only mitigating factor in the defendant’s case is his guilty plea which was entered at the earliest opportunity. Because of that, he is entitled to a full one-third discount. That brings the sentence down from 102 months to 68 months’ imprisonment.

21.Lastly, I consider this sentence fair, just and balanced in all the circumstances of the offence and the defendant.  Accordingly, the defendant is sentenced to imprisonment for 5 years and 8 months.

Exhibits

22.Order in terms of the Prosecution’s application, not objected to by the Defence, was granted.

Ms Kong Siu Ching Cindy, instructed by Chan & Tsu, assigned by DLA, for the Defendant

Ms. Janice Kwan, SPP of the Department of Justice, for the Prosecution