區域法院（刑事）His Honour Judge C P Pang11/4/2024[2024] HKDC 583
DCCC508/2023
A A
B B
DCCC 508/2023
C [2024] HKDC 583 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 508 OF 2023
F F
G ------------------------------ G
HKSAR
H H
v
I * (1st Defendant) I
WONG HOI SHAN (2nd Defendant)
J J
------------------------------
K K
Before: His Honour Judge C P Pang in Court
L L
Date: 12 April 2024
M Present: Mr Cheng Shu Fan Brian, Public Prosecutor, for HKSAR/ M
Director of Public Prosecutions
N N
st
Mr Oliver Davies, instructed by Wong & Co, for the 1
O Defendant O
Miss Cheng Hoi Ching Holly, instructed by Leung & Lien,
P P
nd
assigned by the Director of Legal Aid, for the 2 Defendant
Q Q
Offence: Trafficking in dangerous drugs (販運危險藥物)
R R
--------------------------------------------------
S S
REASONS FOR SENTENCE
T -------------------------------------------------- T
U U
V V
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A A
B B
1. D1 and D2 are jointly charged with one count of trafficking
C in dangerous drugs. Both of them pleaded guilty to the charge. The facts C
admitted by them can be summarised as follows.
D D
E 2. At around 4:45 pm on 25 December 2022, police officers on E
patrol in Ma On Shan spotted a black private car. D1 was sitting on the
F F
front passenger’s seat and D2 sitting on the driver’s seat. The vehicle was
G parked there with its engine running. A female approached D1 and passed G
some money to D1. Feeling suspicious, police officers intercepted D1, D2
H H
and the female.
I I
3. Police searched the vehicle and found the following items:-
J J
K At the storage area at the door of the front passenger’s seat: K
L L
(a) one plastic bag containing 3 plastic bags containing a
M total of 1.58 grammes of a solid containing 1.26 M
grammes of ketamine (Exhibit 1);
N N
O (b) one plastic bag containing 5 plastic bags containing a O
total of 1.31 grammes of a solid containing 1.2
P P
grammes of cocaine (Exhibit 2);
Q Q
R
(c) one plastic bag containing 3 plastic bags containing a R
total of 1.52 grammes of a solid containing 1.28
S S
grammes of ketamine (Exhibit 3);
T T
U U
V V
-3-
A A
B B
At the gloves box at the front passenger’s seat:
C C
(d) one black plastic bag containing items (e) to (i);
D D
E (e) one plastic bag containing 8 plastic bags containing a E
total of 4.19 grammes of a solid containing 3.54
F F
grammes of ketamine (Exhibit 4);
G G
(f) one plastic bag containing 10 plastic bags containing a
H H
total of 5.23 grammes of a solid containing 4.12
I grammes of ketamine (Exhibit 5); I
J J
(g) one plastic bag containing 10 plastic bags containing a
K total of 5.09 grammes of a solid containing 3.92 K
grammes of ketamine (Exhibit 6);
L L
M (h) one plastic bag containing 10 plastic bags containing a M
total of 5.28 grammes of a solid containing 4.12
N N
grammes of ketamine (Exhibit 7);
O O
(i) one plastic bag containing 4 plastic bags containing
P P
1.93 grammes of a solid containing 1.49 grammes of
Q Q
ketamine (Exhibit 8);
R R
(j) one plastic bag containing 10 plastic bags containing
S S
2.6 grammes of a solid containing 2.43 grammes of
T
cocaine (Exhibit 9); T
U U
V V
-4-
A A
B B
(k) one plastic bag containing 10 plastic bags containing
C 2.59 grammes of a solid containing 2.41 grammes of C
cocaine (Exhibit 10);
D D
E (l) one plastic bag containing 4 plastic bags containing E
1.02 grammes of a solid containing 0.95 grammes of
F F
cocaine (Exhibit 11);
G G
(m) one plastic bag containing 10 plastic bags containing
H H
2.6 grammes of a solid containing 2.44 grammes of
I cocaine (Exhibit 12); and I
J J
At a gap on the left side of the driver’s seat:
K K
(n) one plastic bag containing traces of a solid containing
L L
cocaine (Exhibit 13).
M M
4. Under verbal caution, D1 stated that he boarded the vehicle to
N N
distribute stock. The female was there to get ‘Coke’. Police seized cash of
O HK$23,741.10 on D1. O
P P
5. Under reminded caution, D2 stated in a videoed interview that
Q Q
the dangerous drugs belonged to D1, the vehicle belonged to his friend,
R
Chan Ho-wing. He picked up D1 according to instructions from a person R
he could not remember. He saw D1 placed the dangerous drugs in the
S S
vehicle after he boarded the vehicle.
T T
U U
V V
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A A
B B
6. Police inquiry revealed that Chan Ho-wing was the registered
C owner of the vehicle and D2 was his friend. Chan said he passed the vehicle C
to D2 for his use during Christmas.
D D
E 7. D1 has a clear record. E
F F
8. D2 has two previous convictions. On 14 April 2022, he was
G sentenced for managing gambling establishment and another offence to a G
total term of imprisonment for 4 weeks, suspended for 18 months.
H H
Therefore, at the time of committing the present offence, he was in breach
I of the suspended sentence. I
J J
9. The prosecution also asked the court to consider enhancing
K the sentence on D2 under section 56A of the Dangerous Drugs Ordinance K
because D1 is a minor.
L L
M 10. Mr Davies, counsel for D1, has filed written submissions and M
made oral submissions in mitigation in court. He says D1 is now 16 years
N N
old with a clear record. He comes with a humble family background, his
O parents have worked together in the recycling business for more than 10 O
years. D1 is a Form 3 student.
P P
Q Q
11. Counsel refers the court to the sentencing approach in drug
R
trafficking cases set out by the Court of Appeal in HKSAR v Herry Jane R
1
Yusuph as well as the sentencing guideline cases for trafficking in cocaine
S S
and ketamine. He submitted that it is more appropriate to adopt the
T
“combined approach” in the present case. T
1
U [2021] 1 HKLRD 290 U
V V
-6-
A A
B B
12. He has also helpfully calculated the results under the three
C cross-check tests as explained by the Court of Appeal in Chan Yuk Leong2. C
The results are: Under the absurdity test, the starting point is 77 months;
D D
under the conversion test, if cocaine is used as the base drug, the starting
E point will be 66 months; under the ratio test, the result is 64 months. E
F F
13. Learned counsel accepts that a cocktail drug trafficking
G offence would generally be considered as an aggravating factor. He invites G
the court not to aggravate the sentence.
H H
I 14. Counsel submits that D1 gave a full and frank admission at I
the earliest opportunity. He made a verbal admission under arrest at the
J J
scene. He fully cooperated with the police and also indicated that he was
K willing to be a prosecution witness in this case after being arrested. K
L L
15. Counsel tells the court that D1 was induced by a fellow
M classmate to participate in this offence and he foolishly accepted the offer. M
He was not the mastermind nor was he the instigator of the offence. He
N N
only played a very minor role. He followed an unknown man’s instruction
O and sat on the front passenger’s seat of the car to deliver the drugs. O
P P
16. Learned counsel also informs the court that D1 was detained
Q Q
for 5 months before bail was granted to him. During the detention period,
R
he had the chance to further reflect on his foolishness. D1 now feels R
extremely repentant and regretful for what he had done. The defence
S S
invites the court to consider that it is more important in this case to
T
rehabilitate D1 than to severely punish him as a deterrent. T
2
U CACC 318/2013 U
V V
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A A
B B
17. Two mitigation letters, written by D1 and his mother, were
C produced and had been duly considered by the court. Defence counsel C
invites this court to consider a lenient sentence such as an admission to
D D
detention centre.
E E
18. Miss Cheng, counsel for D2, has also filed very detailed
F F
written submission and made oral submission in mitigation in court. She
G first submitted to the court that 2.15 grammes of the 9.43 grammes of the G
cocaine was for D2’s self-consumption. She produced a urine test report
H H
which shows D2’s urine test being taken on 29 December 2022 at Lai Chi
I Kok Reception Centre. He tested positive for cocaine. I
J J
19. Counsel said the dangerous drugs for D2’s own consumption
K consisted of Exhibit 2 (containing 1.2 grammes of cocaine), Exhibit 11 K
(containing 0.95 grammes of cocaine, and Exhibit 13 (containing traces of
L L
cocaine).
M M
20. It was said that the 2 nd defendant had a history of taking
N N
cocaine for around five years. Apart from counsel’s submission at Bar
O table, D2 elected not to give evidence on the claim of self-consumption. O
P P
nd
21. In her mitigation, counsel submits that the 2 defendant was
Q Q
not trafficking simply to make money to satisfy his drug addiction but
R
rather he was seduced into working as courier, in playing the role of a R
driver within the drug trafficking enterprise because cocaine would be
S S
available for him. He had no savings, no other financial ability to purchase
T
dangerous drugs given homelessness from around late 2019. So he can be T
seen as a victim of his own former reliance on cocaine.
U U
V V
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A A
B B
22. Learned counsel told the court that since his graduation from
C Form 5, D2 worked as a driver for decades. He had once been married with C
one son but subsequently was divorced. Around 2017, he became a taxi
D D
driver and met a female with a dangerous drugs habit. She introduced him
E to cocaine. During the COVID-19 pandemic, he lost all his savings and E
ended up homeless as a street sleeper. He received support from social
F F
workers. They managed to help him find a home with work as a cleaner
G but when he lost the job, he ended up homeless again. He met friends who G
introduced him to be a licence holder for a gambling establishment. There,
H H
he met the person who told him to be the driver to traffick dangerous drugs.
I I
23. Two mitigation letters written by D2 were produced to court.
J J
In the letters, D2 stated that he committed one mistake after another. When
K he was on remand, he saw the illnesses and sufferance endured by other K
persons on remand and understood the harm of dangerous drugs. He states
L L
that after imprisonment, he will stay away from dangerous drugs and turn
M over a new leaf. M
N N
24. In respect of the previous suspended sentence, Miss Cheng
O accepted that D2 was in breach of the suspended sentence. She, however, O
submitted that these offences are unrelated to drug trafficking.
P P
Q Q
25. Counsel submits that the starting point for the present offence
R
for D2 should be around 5 years and 5 months taking into account the R
suspended sentence. If the claim for self-consumption is accepted, the
S S
sentence should be reduced to 5 years and 2 months with a reduction of
T
around 20 months for his plea of guilty. T
U U
V V
-9-
A A
B B
26. Trafficking in dangerous drugs is a very serious offence,
C particularly when the present case involved a significant quantity of C
dangerous drugs, ie, 9.43 grammes of cocaine and 19.73 grammes of
D D
ketamine.
E E
27. The Court of Appeal has laid down guidelines for determining
F F
the length of imprisonment for trafficking in different types of drugs. The
G tariff guideline for trafficking in cocaine is set out in the case of Rojas3 and G
Lau Tak Ming4 and for ketamine in Hii Siew Cheng5.
H H
I 28. For up to 10 grammes of cocaine, the sentence ranges from 2 I
to 5 years’ imprisonment. Arithmetically, the starting point for trafficking
J J
of 9.43 grammes of cocaine should be about 57 months.
K K
29. For 10 to 50 grammes of ketamine, the sentence ranges from
L L
4 to 6 years’ imprisonment. Arithmetically, starting point for trafficking of
M 19.73 grammes of ketamine would be about 53 months. M
N N
30. As the case involves a combination of drugs, I adopt the
O approach set out by the Court of Appeal in the case of Islam Majharul6. I O
agree that the combined approach, as against the individual approach,
P P
should be used in the present case and I will use cocaine, being the more
Q Q
potent drug, as the base drug in considering the sentence.
R R
S S
3
T [1994] 1 HKC 342 T
4
[1990] 2 HKLR 370
5
[2009] 1 HKLRD 1
6
U [2020] 3 HKLRD 146 U
V V
- 10 -
A A
B B
31. The next step is to determine how much of the starting point
C for cocaine should be increased to allow for ketamine being also trafficked C
by the defendants.
D D
E 32. Having considered the results of the three cross-check tests E
provided by Mr Davies, I adjust the starting point upwards by 8 months,
F F
arriving at a total of 65 months’ imprisonment. This starting point is
G calculated on the basis that both defendants were playing the role of a G
courier otherwise a higher starting point may be adopted. I now come to
H H
the sentences of each defendant separately.
I I
D1
J J
K 33. I have carefully considered everything said by Mr Davies, K
including that D1 was only 15 years old when he committed the offence;
L L
he made frank admissions under arrest at the scene; he has a clear record;
M he fully cooperated with the police; he also indicated that he was willing to M
be a prosecution witness in the case. Mr Davies asked the court to impose
N N
a lenient sentence such as an admission to detention centre in his written
O submission. O
P P
34. In view of the young age of D1, I called for a training centre
Q Q
suitability report to provide the court with further information. I did not
R
call for detention centre or rehabilitation centre reports as the relatively R
short detention period in these two centres, in my view, cannot properly
S S
reflect the seriousness of the offence.
T T
U U
V V
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A A
B B
35. The training centre report is now before the court, it reveals
C the full background of the 1st defendant. Relevantly, it shows that D1’s C
parents were busily engaged in their work and they were unable to exercise
D D
adequate supervision and guidance on D1.
E E
36. D1 showed no interest in studies and was poor in his school
F F
performance, having to repeat Form 3 twice. The assessment officer of the
G Correctional Services Department considers D1 suitable for detention in G
training centre. Mr Davies asked the court to adopt the recommendation.
H H
I 37. D1 is a very young person, he was only 15 when he committed I
the offence and has now turned 16. While section 109A of the Criminal
J J
Procedure Ordinance does not apply to trafficking in dangerous drugs
K which is an excepted offence, a court must exercise great care before K
committing a young offender to prison.
L L
M 38. That said, the Court of Appeal also restated that even for a M
young offender, a training centre order should not be imposed for
N N
trafficking in substantial quantity of dangerous drugs, save in rare cases.
O O
39. In the present case, D1 should be regarded as extreme youth
P P
for the purpose of mitigation when he committed the offence. He has a
Q Q
clear record. He has also been remanded in custody for about 5 months
R
before being granted bail and a further 16 days for the purpose of R
preparation of the training centre report.
S S
T T
U U
V V
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A A
B B
40. He made confession as soon as he was arrested. He was
C cooperative to the police. It is not disputed that he made a non-prejudicial C
statement to the police. I accept that he is now remorseful.
D D
E 41. I am of the view that as D1 shows no interest in school studies, E
he should learn a skill of trade so that he can acquire a job more easily and
F F
reintegrate into the community after he is released from custody. I think he
G will benefit from a disciplinary training in the training centre. The G
maximum detention in the training centre is 3 years and the average is
H H
around 15 to 18 months followed by a 3-year supervision after release.
I I
42. Having considered all the mitigation put forward by Mr
J J
Davies and the recommendation of the Correctional Services Department,
K I accept that D1 having shown genuine remorse deserves a chance of K
rehabilitation by disciplinary training in the training centre.
L L
M 43. I am satisfied that this is one of those rare cases that a training M
centre order would be in the interest of the 1st defendant as well as the
N N
community. Now for these reasons, D1 is sentenced to detention in a
O training centre. O
P P
D2
Q Q
R
44. I have carefully considered everything said by counsel for D2, R
including D2’s personal circumstances and financial difficulties he faced
S S
during the COVID-19 pandemic period as emphasised in mitigation.
T
However, given the seriousness of the offence, I do not find his background T
and financial predicament, a valid mitigating factor in the case.
U U
V V
- 13 -
A A
B B
45. The quantity of dangerous drugs involved in this case was not
C small and D2 committed the offence together with another. Accepting that C
D2 was not the mastermind, he played a significant role in delivering of
D D
the dangerous drugs by driving the car which he obtained from his friend.
E E
46. As I said in sentencing D1, the initial starting point I would
F F
adopt for trafficking of the dangerous drugs in this case would be 65
G months by arithmetic calculation. What makes it more serious is that D2 G
committed the offence together with a minor. Indeed when D1 appeared in
H H
court, one would no doubt find him a very young person. D2, a 47-year-
I old adult must appreciate that when he met D1. I
J J
47. Section 56A of the Dangerous Drugs Ordinance empowers
K the court to enhance the sentence of a defendant for trafficking in K
dangerous drugs when a minor is engaged in the commission of the
L L
offence. I took into account what the Court of Appeal said in cases,
M including HKSAR v Ng Hon Keung7 and HKSAR v Ho Pak Hong8. M
N N
48. On the facts admitted by D2 in court and the information
O before the court, I am satisfied beyond reasonable doubt that section 56A O
is applicable in this case. I accept the submission of Miss Cheng that the
P P
enhancement should not be more than 3 months in circumstances of the
Q Q
case. Accordingly, the starting point is enhanced by 3 months to 68
R
months’ imprisonment. R
S S
T T
7
[2012] 1 HKLRD 1017
8
U [2022] 1 HKLRD 951 U
V V
- 14 -
A A
B B
49. D2 claimed part of the dangerous drugs was for his own
C consumption, ie, Exhibit 2, 11 and 13. A plea of self consumption as C
mitigation must be proved by cogent evidence. Miss Cheng submitted that
D D
D2’s urine test report showed that his urine taken at Lai Chi Kok Reception
E Centre was cocaine positive. I accept that D2 was a drug dependent on E
cocaine. It, however, does not follow that some drugs in his car was for his
F F
own consumption.
G G
50. E13 found on the driver’s seat contained only traces of
H H
cocaine. It did not add any more weight to the total quantity of the
I dangerous drugs alleged in the charge, and therefore does not affect the I
sentence anyway.
J J
K 51. On the other hand, however, E2, containing 1.2 grammes of K
cocaine was contained in five plastic bags sealed in one larger bag kept at
L L
the storage area at the door of front passenger’s seat. Also, E11 containing
M 0.95 grammes of cocaine was contained in four plastic bags sealed with M
other drugs in a black plastic bag found at the gloves box on front
N N
passenger’s seat. All these dangerous drugs were near to D1, not D2. I do
O not see any good reason why D2 had to put a dangerous drug he intended O
for his own consumption together with other dangerous drugs intended for
P P
trafficking purpose near to D1.
Q Q
R
52. Moreover, under reminded caution, D2 only stated that the R
dangerous drugs belonged to D1. There is no evidence that he ever told the
S S
police that part of the dangerous drugs found by police was for his own
T
consumption. T
U U
V V
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A A
B B
53. On the totality of the evidence, I do not accept that Exhibit 2
C and 11 were for D2’s own consumption. While I exclude Exhibit 13 from C
the charge, the starting point remains the same as 68 months’
D D
imprisonment.
E E
54. As said, the personal circumstances of D2 in the present case
F F
cannot be accepted as mitigating factor. The only valid mitigation is D2’s
G plea of guilty for which I will give him the full one-third discount. The G
sentence is therefore reduced and rounded down to 45 months’
H H
imprisonment.
I I
55. Miss Cheng did not dispute that D2 was in breach of the
J J
suspended sentence for 4 weeks imposed on him. She said those
K convictions were unrelated to drug trafficking, but that is not a good reason K
not to activate the sentence.
L L
M 56. I therefore order that the 4 weeks’ imprisonment passed and M
suspended on 14 April 2022 be now activated in full to run consecutively
N N
to the sentence passed in the present case. The total sentence D2 has to
O serve is 45 months and 4 weeks’ imprisonment. O
P P
Q Q
R ( C P Pang ) R
District Judge
S S
T T
U U
V V
A A
B B
DCCC 508/2023
C [2024] HKDC 583 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 508 OF 2023
F F
G ------------------------------ G
HKSAR
H H
v
I * (1st Defendant) I
WONG HOI SHAN (2nd Defendant)
J J
------------------------------
K K
Before: His Honour Judge C P Pang in Court
L L
Date: 12 April 2024
M Present: Mr Cheng Shu Fan Brian, Public Prosecutor, for HKSAR/ M
Director of Public Prosecutions
N N
st
Mr Oliver Davies, instructed by Wong & Co, for the 1
O Defendant O
Miss Cheng Hoi Ching Holly, instructed by Leung & Lien,
P P
nd
assigned by the Director of Legal Aid, for the 2 Defendant
Q Q
Offence: Trafficking in dangerous drugs (販運危險藥物)
R R
--------------------------------------------------
S S
REASONS FOR SENTENCE
T -------------------------------------------------- T
U U
V V
-2-
A A
B B
1. D1 and D2 are jointly charged with one count of trafficking
C in dangerous drugs. Both of them pleaded guilty to the charge. The facts C
admitted by them can be summarised as follows.
D D
E 2. At around 4:45 pm on 25 December 2022, police officers on E
patrol in Ma On Shan spotted a black private car. D1 was sitting on the
F F
front passenger’s seat and D2 sitting on the driver’s seat. The vehicle was
G parked there with its engine running. A female approached D1 and passed G
some money to D1. Feeling suspicious, police officers intercepted D1, D2
H H
and the female.
I I
3. Police searched the vehicle and found the following items:-
J J
K At the storage area at the door of the front passenger’s seat: K
L L
(a) one plastic bag containing 3 plastic bags containing a
M total of 1.58 grammes of a solid containing 1.26 M
grammes of ketamine (Exhibit 1);
N N
O (b) one plastic bag containing 5 plastic bags containing a O
total of 1.31 grammes of a solid containing 1.2
P P
grammes of cocaine (Exhibit 2);
Q Q
R
(c) one plastic bag containing 3 plastic bags containing a R
total of 1.52 grammes of a solid containing 1.28
S S
grammes of ketamine (Exhibit 3);
T T
U U
V V
-3-
A A
B B
At the gloves box at the front passenger’s seat:
C C
(d) one black plastic bag containing items (e) to (i);
D D
E (e) one plastic bag containing 8 plastic bags containing a E
total of 4.19 grammes of a solid containing 3.54
F F
grammes of ketamine (Exhibit 4);
G G
(f) one plastic bag containing 10 plastic bags containing a
H H
total of 5.23 grammes of a solid containing 4.12
I grammes of ketamine (Exhibit 5); I
J J
(g) one plastic bag containing 10 plastic bags containing a
K total of 5.09 grammes of a solid containing 3.92 K
grammes of ketamine (Exhibit 6);
L L
M (h) one plastic bag containing 10 plastic bags containing a M
total of 5.28 grammes of a solid containing 4.12
N N
grammes of ketamine (Exhibit 7);
O O
(i) one plastic bag containing 4 plastic bags containing
P P
1.93 grammes of a solid containing 1.49 grammes of
Q Q
ketamine (Exhibit 8);
R R
(j) one plastic bag containing 10 plastic bags containing
S S
2.6 grammes of a solid containing 2.43 grammes of
T
cocaine (Exhibit 9); T
U U
V V
-4-
A A
B B
(k) one plastic bag containing 10 plastic bags containing
C 2.59 grammes of a solid containing 2.41 grammes of C
cocaine (Exhibit 10);
D D
E (l) one plastic bag containing 4 plastic bags containing E
1.02 grammes of a solid containing 0.95 grammes of
F F
cocaine (Exhibit 11);
G G
(m) one plastic bag containing 10 plastic bags containing
H H
2.6 grammes of a solid containing 2.44 grammes of
I cocaine (Exhibit 12); and I
J J
At a gap on the left side of the driver’s seat:
K K
(n) one plastic bag containing traces of a solid containing
L L
cocaine (Exhibit 13).
M M
4. Under verbal caution, D1 stated that he boarded the vehicle to
N N
distribute stock. The female was there to get ‘Coke’. Police seized cash of
O HK$23,741.10 on D1. O
P P
5. Under reminded caution, D2 stated in a videoed interview that
Q Q
the dangerous drugs belonged to D1, the vehicle belonged to his friend,
R
Chan Ho-wing. He picked up D1 according to instructions from a person R
he could not remember. He saw D1 placed the dangerous drugs in the
S S
vehicle after he boarded the vehicle.
T T
U U
V V
-5-
A A
B B
6. Police inquiry revealed that Chan Ho-wing was the registered
C owner of the vehicle and D2 was his friend. Chan said he passed the vehicle C
to D2 for his use during Christmas.
D D
E 7. D1 has a clear record. E
F F
8. D2 has two previous convictions. On 14 April 2022, he was
G sentenced for managing gambling establishment and another offence to a G
total term of imprisonment for 4 weeks, suspended for 18 months.
H H
Therefore, at the time of committing the present offence, he was in breach
I of the suspended sentence. I
J J
9. The prosecution also asked the court to consider enhancing
K the sentence on D2 under section 56A of the Dangerous Drugs Ordinance K
because D1 is a minor.
L L
M 10. Mr Davies, counsel for D1, has filed written submissions and M
made oral submissions in mitigation in court. He says D1 is now 16 years
N N
old with a clear record. He comes with a humble family background, his
O parents have worked together in the recycling business for more than 10 O
years. D1 is a Form 3 student.
P P
Q Q
11. Counsel refers the court to the sentencing approach in drug
R
trafficking cases set out by the Court of Appeal in HKSAR v Herry Jane R
1
Yusuph as well as the sentencing guideline cases for trafficking in cocaine
S S
and ketamine. He submitted that it is more appropriate to adopt the
T
“combined approach” in the present case. T
1
U [2021] 1 HKLRD 290 U
V V
-6-
A A
B B
12. He has also helpfully calculated the results under the three
C cross-check tests as explained by the Court of Appeal in Chan Yuk Leong2. C
The results are: Under the absurdity test, the starting point is 77 months;
D D
under the conversion test, if cocaine is used as the base drug, the starting
E point will be 66 months; under the ratio test, the result is 64 months. E
F F
13. Learned counsel accepts that a cocktail drug trafficking
G offence would generally be considered as an aggravating factor. He invites G
the court not to aggravate the sentence.
H H
I 14. Counsel submits that D1 gave a full and frank admission at I
the earliest opportunity. He made a verbal admission under arrest at the
J J
scene. He fully cooperated with the police and also indicated that he was
K willing to be a prosecution witness in this case after being arrested. K
L L
15. Counsel tells the court that D1 was induced by a fellow
M classmate to participate in this offence and he foolishly accepted the offer. M
He was not the mastermind nor was he the instigator of the offence. He
N N
only played a very minor role. He followed an unknown man’s instruction
O and sat on the front passenger’s seat of the car to deliver the drugs. O
P P
16. Learned counsel also informs the court that D1 was detained
Q Q
for 5 months before bail was granted to him. During the detention period,
R
he had the chance to further reflect on his foolishness. D1 now feels R
extremely repentant and regretful for what he had done. The defence
S S
invites the court to consider that it is more important in this case to
T
rehabilitate D1 than to severely punish him as a deterrent. T
2
U CACC 318/2013 U
V V
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A A
B B
17. Two mitigation letters, written by D1 and his mother, were
C produced and had been duly considered by the court. Defence counsel C
invites this court to consider a lenient sentence such as an admission to
D D
detention centre.
E E
18. Miss Cheng, counsel for D2, has also filed very detailed
F F
written submission and made oral submission in mitigation in court. She
G first submitted to the court that 2.15 grammes of the 9.43 grammes of the G
cocaine was for D2’s self-consumption. She produced a urine test report
H H
which shows D2’s urine test being taken on 29 December 2022 at Lai Chi
I Kok Reception Centre. He tested positive for cocaine. I
J J
19. Counsel said the dangerous drugs for D2’s own consumption
K consisted of Exhibit 2 (containing 1.2 grammes of cocaine), Exhibit 11 K
(containing 0.95 grammes of cocaine, and Exhibit 13 (containing traces of
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cocaine).
M M
20. It was said that the 2 nd defendant had a history of taking
N N
cocaine for around five years. Apart from counsel’s submission at Bar
O table, D2 elected not to give evidence on the claim of self-consumption. O
P P
nd
21. In her mitigation, counsel submits that the 2 defendant was
Q Q
not trafficking simply to make money to satisfy his drug addiction but
R
rather he was seduced into working as courier, in playing the role of a R
driver within the drug trafficking enterprise because cocaine would be
S S
available for him. He had no savings, no other financial ability to purchase
T
dangerous drugs given homelessness from around late 2019. So he can be T
seen as a victim of his own former reliance on cocaine.
U U
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A A
B B
22. Learned counsel told the court that since his graduation from
C Form 5, D2 worked as a driver for decades. He had once been married with C
one son but subsequently was divorced. Around 2017, he became a taxi
D D
driver and met a female with a dangerous drugs habit. She introduced him
E to cocaine. During the COVID-19 pandemic, he lost all his savings and E
ended up homeless as a street sleeper. He received support from social
F F
workers. They managed to help him find a home with work as a cleaner
G but when he lost the job, he ended up homeless again. He met friends who G
introduced him to be a licence holder for a gambling establishment. There,
H H
he met the person who told him to be the driver to traffick dangerous drugs.
I I
23. Two mitigation letters written by D2 were produced to court.
J J
In the letters, D2 stated that he committed one mistake after another. When
K he was on remand, he saw the illnesses and sufferance endured by other K
persons on remand and understood the harm of dangerous drugs. He states
L L
that after imprisonment, he will stay away from dangerous drugs and turn
M over a new leaf. M
N N
24. In respect of the previous suspended sentence, Miss Cheng
O accepted that D2 was in breach of the suspended sentence. She, however, O
submitted that these offences are unrelated to drug trafficking.
P P
Q Q
25. Counsel submits that the starting point for the present offence
R
for D2 should be around 5 years and 5 months taking into account the R
suspended sentence. If the claim for self-consumption is accepted, the
S S
sentence should be reduced to 5 years and 2 months with a reduction of
T
around 20 months for his plea of guilty. T
U U
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A A
B B
26. Trafficking in dangerous drugs is a very serious offence,
C particularly when the present case involved a significant quantity of C
dangerous drugs, ie, 9.43 grammes of cocaine and 19.73 grammes of
D D
ketamine.
E E
27. The Court of Appeal has laid down guidelines for determining
F F
the length of imprisonment for trafficking in different types of drugs. The
G tariff guideline for trafficking in cocaine is set out in the case of Rojas3 and G
Lau Tak Ming4 and for ketamine in Hii Siew Cheng5.
H H
I 28. For up to 10 grammes of cocaine, the sentence ranges from 2 I
to 5 years’ imprisonment. Arithmetically, the starting point for trafficking
J J
of 9.43 grammes of cocaine should be about 57 months.
K K
29. For 10 to 50 grammes of ketamine, the sentence ranges from
L L
4 to 6 years’ imprisonment. Arithmetically, starting point for trafficking of
M 19.73 grammes of ketamine would be about 53 months. M
N N
30. As the case involves a combination of drugs, I adopt the
O approach set out by the Court of Appeal in the case of Islam Majharul6. I O
agree that the combined approach, as against the individual approach,
P P
should be used in the present case and I will use cocaine, being the more
Q Q
potent drug, as the base drug in considering the sentence.
R R
S S
3
T [1994] 1 HKC 342 T
4
[1990] 2 HKLR 370
5
[2009] 1 HKLRD 1
6
U [2020] 3 HKLRD 146 U
V V
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A A
B B
31. The next step is to determine how much of the starting point
C for cocaine should be increased to allow for ketamine being also trafficked C
by the defendants.
D D
E 32. Having considered the results of the three cross-check tests E
provided by Mr Davies, I adjust the starting point upwards by 8 months,
F F
arriving at a total of 65 months’ imprisonment. This starting point is
G calculated on the basis that both defendants were playing the role of a G
courier otherwise a higher starting point may be adopted. I now come to
H H
the sentences of each defendant separately.
I I
D1
J J
K 33. I have carefully considered everything said by Mr Davies, K
including that D1 was only 15 years old when he committed the offence;
L L
he made frank admissions under arrest at the scene; he has a clear record;
M he fully cooperated with the police; he also indicated that he was willing to M
be a prosecution witness in the case. Mr Davies asked the court to impose
N N
a lenient sentence such as an admission to detention centre in his written
O submission. O
P P
34. In view of the young age of D1, I called for a training centre
Q Q
suitability report to provide the court with further information. I did not
R
call for detention centre or rehabilitation centre reports as the relatively R
short detention period in these two centres, in my view, cannot properly
S S
reflect the seriousness of the offence.
T T
U U
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A A
B B
35. The training centre report is now before the court, it reveals
C the full background of the 1st defendant. Relevantly, it shows that D1’s C
parents were busily engaged in their work and they were unable to exercise
D D
adequate supervision and guidance on D1.
E E
36. D1 showed no interest in studies and was poor in his school
F F
performance, having to repeat Form 3 twice. The assessment officer of the
G Correctional Services Department considers D1 suitable for detention in G
training centre. Mr Davies asked the court to adopt the recommendation.
H H
I 37. D1 is a very young person, he was only 15 when he committed I
the offence and has now turned 16. While section 109A of the Criminal
J J
Procedure Ordinance does not apply to trafficking in dangerous drugs
K which is an excepted offence, a court must exercise great care before K
committing a young offender to prison.
L L
M 38. That said, the Court of Appeal also restated that even for a M
young offender, a training centre order should not be imposed for
N N
trafficking in substantial quantity of dangerous drugs, save in rare cases.
O O
39. In the present case, D1 should be regarded as extreme youth
P P
for the purpose of mitigation when he committed the offence. He has a
Q Q
clear record. He has also been remanded in custody for about 5 months
R
before being granted bail and a further 16 days for the purpose of R
preparation of the training centre report.
S S
T T
U U
V V
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A A
B B
40. He made confession as soon as he was arrested. He was
C cooperative to the police. It is not disputed that he made a non-prejudicial C
statement to the police. I accept that he is now remorseful.
D D
E 41. I am of the view that as D1 shows no interest in school studies, E
he should learn a skill of trade so that he can acquire a job more easily and
F F
reintegrate into the community after he is released from custody. I think he
G will benefit from a disciplinary training in the training centre. The G
maximum detention in the training centre is 3 years and the average is
H H
around 15 to 18 months followed by a 3-year supervision after release.
I I
42. Having considered all the mitigation put forward by Mr
J J
Davies and the recommendation of the Correctional Services Department,
K I accept that D1 having shown genuine remorse deserves a chance of K
rehabilitation by disciplinary training in the training centre.
L L
M 43. I am satisfied that this is one of those rare cases that a training M
centre order would be in the interest of the 1st defendant as well as the
N N
community. Now for these reasons, D1 is sentenced to detention in a
O training centre. O
P P
D2
Q Q
R
44. I have carefully considered everything said by counsel for D2, R
including D2’s personal circumstances and financial difficulties he faced
S S
during the COVID-19 pandemic period as emphasised in mitigation.
T
However, given the seriousness of the offence, I do not find his background T
and financial predicament, a valid mitigating factor in the case.
U U
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A A
B B
45. The quantity of dangerous drugs involved in this case was not
C small and D2 committed the offence together with another. Accepting that C
D2 was not the mastermind, he played a significant role in delivering of
D D
the dangerous drugs by driving the car which he obtained from his friend.
E E
46. As I said in sentencing D1, the initial starting point I would
F F
adopt for trafficking of the dangerous drugs in this case would be 65
G months by arithmetic calculation. What makes it more serious is that D2 G
committed the offence together with a minor. Indeed when D1 appeared in
H H
court, one would no doubt find him a very young person. D2, a 47-year-
I old adult must appreciate that when he met D1. I
J J
47. Section 56A of the Dangerous Drugs Ordinance empowers
K the court to enhance the sentence of a defendant for trafficking in K
dangerous drugs when a minor is engaged in the commission of the
L L
offence. I took into account what the Court of Appeal said in cases,
M including HKSAR v Ng Hon Keung7 and HKSAR v Ho Pak Hong8. M
N N
48. On the facts admitted by D2 in court and the information
O before the court, I am satisfied beyond reasonable doubt that section 56A O
is applicable in this case. I accept the submission of Miss Cheng that the
P P
enhancement should not be more than 3 months in circumstances of the
Q Q
case. Accordingly, the starting point is enhanced by 3 months to 68
R
months’ imprisonment. R
S S
T T
7
[2012] 1 HKLRD 1017
8
U [2022] 1 HKLRD 951 U
V V
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A A
B B
49. D2 claimed part of the dangerous drugs was for his own
C consumption, ie, Exhibit 2, 11 and 13. A plea of self consumption as C
mitigation must be proved by cogent evidence. Miss Cheng submitted that
D D
D2’s urine test report showed that his urine taken at Lai Chi Kok Reception
E Centre was cocaine positive. I accept that D2 was a drug dependent on E
cocaine. It, however, does not follow that some drugs in his car was for his
F F
own consumption.
G G
50. E13 found on the driver’s seat contained only traces of
H H
cocaine. It did not add any more weight to the total quantity of the
I dangerous drugs alleged in the charge, and therefore does not affect the I
sentence anyway.
J J
K 51. On the other hand, however, E2, containing 1.2 grammes of K
cocaine was contained in five plastic bags sealed in one larger bag kept at
L L
the storage area at the door of front passenger’s seat. Also, E11 containing
M 0.95 grammes of cocaine was contained in four plastic bags sealed with M
other drugs in a black plastic bag found at the gloves box on front
N N
passenger’s seat. All these dangerous drugs were near to D1, not D2. I do
O not see any good reason why D2 had to put a dangerous drug he intended O
for his own consumption together with other dangerous drugs intended for
P P
trafficking purpose near to D1.
Q Q
R
52. Moreover, under reminded caution, D2 only stated that the R
dangerous drugs belonged to D1. There is no evidence that he ever told the
S S
police that part of the dangerous drugs found by police was for his own
T
consumption. T
U U
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A A
B B
53. On the totality of the evidence, I do not accept that Exhibit 2
C and 11 were for D2’s own consumption. While I exclude Exhibit 13 from C
the charge, the starting point remains the same as 68 months’
D D
imprisonment.
E E
54. As said, the personal circumstances of D2 in the present case
F F
cannot be accepted as mitigating factor. The only valid mitigation is D2’s
G plea of guilty for which I will give him the full one-third discount. The G
sentence is therefore reduced and rounded down to 45 months’
H H
imprisonment.
I I
55. Miss Cheng did not dispute that D2 was in breach of the
J J
suspended sentence for 4 weeks imposed on him. She said those
K convictions were unrelated to drug trafficking, but that is not a good reason K
not to activate the sentence.
L L
M 56. I therefore order that the 4 weeks’ imprisonment passed and M
suspended on 14 April 2022 be now activated in full to run consecutively
N N
to the sentence passed in the present case. The total sentence D2 has to
O serve is 45 months and 4 weeks’ imprisonment. O
P P
Q Q
R ( C P Pang ) R
District Judge
S S
T T
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