HKSAR v. Thapa Sagar

DCCC 770/2024

[2025] HKDC 707

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 770 OF 2024

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REASONS FOR SENTENCE

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

(a)  43.1 g of cannabis in herbal form;

(b)  4.37 g of ketamine;

(c)  4.94 g of cocaine.

Summary of Facts

2.At around 11:52 am on 4 March 2024, the police found the Defendant acting furtively outside 370 Shanghai Street and intercepted him for a body search.  The police found the following items:-

(a)  The dangerous drugs as stated in the charge;

(b)  Two mobile phones;

(c)  $3,151 cash.

3.The Defendant said under caution that all the dangerous drugs found were for his own consumption.

4.The total estimate retail price of all the drugs was about $16,000.

Criminal record

5.The Defendant has 2 previous record:-

(a)  In 2012 – theft

(b)  In 2023 – money laundering – he was discharged from prison in 11/2023.

Mitigation

6.The Defendant is now 27 years old.  He is an ethnic Nepalese, but born and raised by various foster families in Hong Kong,

7.He previously worked as a decoration worker.  However, since the onset of Covid Pandemic, he has less work to do and eventually ends up in dire straits.

8.In his letter to this Court, he said that he is remorseful for his misdeed.  During his period of remand, he has learned computer programming and wishes to be reunited with his twin brother after his release from prison.  The defence confirmed that he is not a drug addict.

Sentence

9.In the present case, there are 3 types of dangerous drugs being trafficked:-

(a)  43.1 g of cannabis in herbal form (packed into 9 bags);

(b)  4.3 g of ketamine (packed into 9 bags);

(c)  4.94 g of cocaine (packed into 21 bags).

10.As such , there is a 7 steps sentencing approach as set out in HKSAR v Islam Majharul CACC 67/2019:

(1)  Among the 3 types of drugs, the defence accepted that the most serious drug in term of potency is cocaine. The correct base drug in determining the starting point is cocaine.

(2)  The applicable sentencing bracket according to the relevant sentencing guidelines for the 3 types of drugs:-

(a)  43.1 g of cannabis in herbal form in the sentencing bracket[1] is up to 16 months. As such, the starting point is 0.34 months. It is clear that the quantity of Cannabis has very insignificant bearing in the sentencing process.

(b)  4.37 g of ketamine falls into the sentencing bracket[2] of 2 to 4 years. As such, the starting point is 33 months.

(c)  4.94 g of cocaine falls into the sentencing bracket[3] of 2 to 5 years. As such the starting point is 41.8 months.

(3)  The Prosecution and the defence agreed of the results of the absurdity test, conversion test and the ration test as follow :-

(a)  Absurdity test – 96.77 months.

(b)  Conversion test – by applying cocaine as the base drugs – 50.8 months.

(c)  Ration test – 15.82 months

(4)  I take 41.8 months as the starting point and enhance the starting point by 9 months to take into account of the quantity of ketamine. That arrives at 50.8 months.

(5)  The defence said that the Defendant was only a courier. From the evidence before me, there is no evidence to prove otherwise. As such, the Defendant is to be sentenced as a courier.

(6)  Aggravating factors:-

(a)  As there were 3 types of drugs – which would have catered for a wider market, ketamine is commonly used with another drug to prolong its effect; and the drugs were contained in packets for ready distribution to a larger number of users. (HKSAR v Choy Wing Sing CACC 252/2021 paragraph 6)

(b)  The Defendant committed the present offence 4 months after his discharge from prison.

(7)  (i)  I considered that a 6 months enhancement to the starting point is appropriate.

(ii)  The total sentence aggregate to 56.8 months (50.8 + 6), the sentence comes down to 37.9 months after 1/3 discount. I round down to 37 months.

11.The Defendant is ordered to serve a sentence of 3 years 1 months.