A HCCC 198/2023 A
[2023] HKCFI 3282
B B
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C C
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 198 OF 2023
D D
-----------------
E HKSAR E
v
F F
Lam Chi-tat
G G
-----------------
H H
Before: DHCJ Woodcock
I
Date: 15 November 2023 at 10.08 am I
Present: Mr Tang Ming-chung Kelvin, SPP of the Department of
Justice, for HKSAR
J Mr Paulinus Lo, instructed by KCL & Partners, for the J
accused
Offence: (1) Wilfully obstructing a police officer in due
K K
execution of duty (故意阻撓在正當執行職務的警務人員)
(2) Trafficking in dangerous drugs (販運危險藥物)
L L
---------------------------------
Transcript of the Audio Recording
M of the Sentence in the above Case M
---------------------------------
N N
COURT: The defendant has pleaded guilty in the Magistrates’
Court to one count of wilfully obstructing a police officer
O in the due execution of his duty, namely, Detective Sergeant O
46765, and one count of trafficking in dangerous drugs,
trafficking in 143.3 grammes of a solid containing
P 117.8 grammes of ketamine and 100.74 grammes of a solid P
containing 87.57 grammes of cocaine and he was committed for
Q sentence and today confirms his plea and agreement to the Q
Summary of Facts.
R The Summary of Facts R
At about 6.50 in the evening, on 9 August 2021, police
S S
officers mounted an anti-narcotics operation at Block 50,
City One Sha Tin, and put Room G of the 18th Floor under
T observation. At the material times, the defendant was the T
sole tenant of Room G.
U U
CRT27/15.11.2023/JC 1 HCCC 198/2023(1)/Sentence
V V
A At around 9.12 pm, the defendant was seen leaving the room A
and heading towards the lift lobby. When he reached the
ground floor, he was seen approach a private vehicle parked
B on the road and then carrying a carton box back to Block 50. B
He went back upstairs and at the lift lobby of the
18th floor he was intercepted. When asked what was in the
C C
box, he tore it apart and claimed it contained bottled
water. The defendant was asked to produce his Hong Kong
D identity card and he claimed it was inside the premises. A D
body search was requested but ignored.
E The defendant moved away from the police officer and put his E
right hand into his right pocket. That officer grabbed hold
of his hand and told him not to move. The defendant barged
F F
the officer out of the way, took out a bunch of keys from
his pocket, and threw them out from a window. The keys got
G trapped in the frame but the defendant reached his hand down G
and pushed the keys out of the window. The defendant was
subdued and handcuffed at that point. The keys were
H retrieved from the 2nd floor podium and the police were able H
to gain access to the defendant’s premises. His premises
I
were searched. I
Inside the premises, the police found the ketamine and
J cocaine of Charge 2 and some paraphernalia associated with J
packaging dangerous drugs for the purposes of selling it on.
That included several electronic scales, scissors, spoons,
K and resealable transparent plastic bags. The police also K
found $134,000 in cash.
L L
It was an admitted fact that the estimated street value at
that time of all the ketamine was $106,799 and that the
M cocaine was about $115,650 if in powder form or $147,483 if M
converted into crack cocaine.
N Mitigation N
O I have heard full mitigation from Mr Lo, he has written and O
said all he can say on behalf of the defendant. The
defendant is now 24 years old. He was born in Hong Kong and
P educated up to Form 4 level. At the time of his arrest, he P
was unemployed. He was a man with a clear record. I have
received a mitigation letter written by the defendant. He
Q Q
is remorseful and regrets committing these offences. He has
learnt his lesson and will turn over a new leaf after he has
R served this sentence. He is sorry to have disappointed his R
parents.
S The defendant’s best mitigation is his plea of guilty at the S
earliest opportunity.
T T
U U
CRT27/15.11.2023/JC 2 HCCC 198/2023(1)/Sentence
V V
A Sentencing A
Wilfully obstructing a police officer in the due execution
B of his duty is and can be a serious offence. The charge B
under section 36(b) of the Offences against the Person
Ordinance will attract an immediate custodial sentence.
C C
However, I have taken into account the facts of the
obstruction and I accept it was a desperate act of a man
D knowing he was about to be arrested for trafficking a D
significant amount of drugs. He was delaying the
inevitable. No officer was injured as a result of his
E obstruction. E
I will take a starting point of 18 months’ imprisonment
F F
which will be reduced by 6 months or a third to take into
account the defendant’s plea at the earliest opportunity.
G This will result in a sentence of 12 months’ imprisonment G
for Charge 1.
H I turn to Charge 2. I have considered the approach to the H
sentencing of trafficking dangerous drugs as laid down by
I
the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 I
HKLRD 290. I have considered the six-step sentencing
approach set out in that authority. In this case, I accept
J and I am satisfied that the defendant was on the evidence J
before me, a storekeeper, therefore his sentence is to be
determined by the relevant tariffs and the quantity of
K dangerous drugs involved. K
L I have considered whether to take into account the fact that L
there are two types of drugs involved here which can be
considered an aggravating factor, which may mean an
M enhancement of sentence. However, I have looked at the M
quantity of each type of drug as well as the packaging and
his role as a storekeeper. I will not, under those
N circumstances, consider this an aggravating factor. N
O I agree that the combined approach in sentencing is O
preferred. Here we have two types of drugs, a cocktail of
drugs. In such a situation, a combined approach will
P usually be correct, preferred and produces the more P
realistic and fair sentence. In the combined approach, I
will look at the overall quantity of drugs rather than
Q Q
individual parcels and types. This is opposed to the
individual approach of calculating the tariff for each type
R of drug based on the quantity and adding the tariffs R
together.
S I have been urged to adopt the approach of the conversion S
rate whereby I will take a starting single tariff for one of
the types of drugs and here it will be cocaine as its
T T
potency is significantly more than the ketamine as is the
starting point mathematically.
U U
CRT27/15.11.2023/JC 3 HCCC 198/2023(1)/Sentence
V V
A The tariffs for the drug cocaine follows the tariff for A
trafficking in heroin, HKSAR v Pedro Nel Rojas [1994] 1 HKC
342. For the present purposes, the tariffs in HKSAR v Lau
B Tak Ming [1990] 2 HKLR 370 says that trafficking in between B
50 to 200 grammes would attract a sentence of between 8 to
12 years’ imprisonment after trial. In the present case,
C C
for the 87.57 grammes of cocaine, after trial that would in
itself attract a sentence of 9 years’ imprisonment.
D D
The tariff for the drug ketamine are set out in the
authority of Secretary for Justice v Hii Siew Cheng [2009] 1
E HKLRD 1. In that case, it was held that the sentence for E
trafficking between 50 to 300 grammes is 6 to 9 years’
imprisonment after trial. Here we have 117.8 grammes of
F F
ketamine. After trial, that would in itself attract a
sentence of 6 years and 10 months’ imprisonment. However,
G in converting that amount of ketamine to cocaine, that would G
be equivalent to 34.18 grammes.
H In adding that converted amount of 34.18 grammes to the H
87.57 grammes of cocaine, this would equal 121.75 grammes of
I
cocaine. Applying the tariffs for cocaine as I have set out I
above, the starting point would therefore mathematically be
9 years and 11 months’ imprisonment.
J J
As I have said above, the methodology of this combined
approach is to first calculate the applicable sentence for
K the most potent and more serious drug, here cocaine, and K
then make an upward adjustment to take into account the
L quantity of ketamine. L
I have considered the three means of cross-checking whether
M the sentence would be manifestly excessive. I have M
considered the absurdity test, the ratio test, and the
conversion test or the combined approach. Counsel agreed
N that this conversion test or combined approach is the most N
favourable starting point for the defendant in the
O circumstances. O
The defendant pleaded guilty at the earliest opportunity and
P he is entitled to a one-third discount. I have also taken P
into consideration the six steps of the Herry Jane Yusuph
authority.
Q Q
After considering mitigation and considering the six steps
R of that authority as well as for the purposes of applying a R
discount of one-third, I will take a starting point of 9
years and 9 months for Charge 2. After the applicable
S discount is applied to that starting point, I reduce it to a S
sentence of 6 years and 6 months for Charge 2.
T T
U U
CRT27/15.11.2023/JC 4 HCCC 198/2023(1)/Sentence
V V
A After considering the totality principle and the facts of A
the case, I will order that the sentences for both Charges 1
and 2 be served concurrently. Accordingly, the defendant is
B therefore sentenced to a total of 6 years and 6 months’ B
imprisonment.
C C
D D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT27/15.11.2023/JC 5 HCCC 198/2023(1)/Sentence
V V
A HCCC 198/2023 A
[2023] HKCFI 3282
B B
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C C
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 198 OF 2023
D D
-----------------
E HKSAR E
v
F F
Lam Chi-tat
G G
-----------------
H H
Before: DHCJ Woodcock
I
Date: 15 November 2023 at 10.08 am I
Present: Mr Tang Ming-chung Kelvin, SPP of the Department of
Justice, for HKSAR
J Mr Paulinus Lo, instructed by KCL & Partners, for the J
accused
Offence: (1) Wilfully obstructing a police officer in due
K K
execution of duty (故意阻撓在正當執行職務的警務人員)
(2) Trafficking in dangerous drugs (販運危險藥物)
L L
---------------------------------
Transcript of the Audio Recording
M of the Sentence in the above Case M
---------------------------------
N N
COURT: The defendant has pleaded guilty in the Magistrates’
Court to one count of wilfully obstructing a police officer
O in the due execution of his duty, namely, Detective Sergeant O
46765, and one count of trafficking in dangerous drugs,
trafficking in 143.3 grammes of a solid containing
P 117.8 grammes of ketamine and 100.74 grammes of a solid P
containing 87.57 grammes of cocaine and he was committed for
Q sentence and today confirms his plea and agreement to the Q
Summary of Facts.
R The Summary of Facts R
At about 6.50 in the evening, on 9 August 2021, police
S S
officers mounted an anti-narcotics operation at Block 50,
City One Sha Tin, and put Room G of the 18th Floor under
T observation. At the material times, the defendant was the T
sole tenant of Room G.
U U
CRT27/15.11.2023/JC 1 HCCC 198/2023(1)/Sentence
V V
A At around 9.12 pm, the defendant was seen leaving the room A
and heading towards the lift lobby. When he reached the
ground floor, he was seen approach a private vehicle parked
B on the road and then carrying a carton box back to Block 50. B
He went back upstairs and at the lift lobby of the
18th floor he was intercepted. When asked what was in the
C C
box, he tore it apart and claimed it contained bottled
water. The defendant was asked to produce his Hong Kong
D identity card and he claimed it was inside the premises. A D
body search was requested but ignored.
E The defendant moved away from the police officer and put his E
right hand into his right pocket. That officer grabbed hold
of his hand and told him not to move. The defendant barged
F F
the officer out of the way, took out a bunch of keys from
his pocket, and threw them out from a window. The keys got
G trapped in the frame but the defendant reached his hand down G
and pushed the keys out of the window. The defendant was
subdued and handcuffed at that point. The keys were
H retrieved from the 2nd floor podium and the police were able H
to gain access to the defendant’s premises. His premises
I
were searched. I
Inside the premises, the police found the ketamine and
J cocaine of Charge 2 and some paraphernalia associated with J
packaging dangerous drugs for the purposes of selling it on.
That included several electronic scales, scissors, spoons,
K and resealable transparent plastic bags. The police also K
found $134,000 in cash.
L L
It was an admitted fact that the estimated street value at
that time of all the ketamine was $106,799 and that the
M cocaine was about $115,650 if in powder form or $147,483 if M
converted into crack cocaine.
N Mitigation N
O I have heard full mitigation from Mr Lo, he has written and O
said all he can say on behalf of the defendant. The
defendant is now 24 years old. He was born in Hong Kong and
P educated up to Form 4 level. At the time of his arrest, he P
was unemployed. He was a man with a clear record. I have
received a mitigation letter written by the defendant. He
Q Q
is remorseful and regrets committing these offences. He has
learnt his lesson and will turn over a new leaf after he has
R served this sentence. He is sorry to have disappointed his R
parents.
S The defendant’s best mitigation is his plea of guilty at the S
earliest opportunity.
T T
U U
CRT27/15.11.2023/JC 2 HCCC 198/2023(1)/Sentence
V V
A Sentencing A
Wilfully obstructing a police officer in the due execution
B of his duty is and can be a serious offence. The charge B
under section 36(b) of the Offences against the Person
Ordinance will attract an immediate custodial sentence.
C C
However, I have taken into account the facts of the
obstruction and I accept it was a desperate act of a man
D knowing he was about to be arrested for trafficking a D
significant amount of drugs. He was delaying the
inevitable. No officer was injured as a result of his
E obstruction. E
I will take a starting point of 18 months’ imprisonment
F F
which will be reduced by 6 months or a third to take into
account the defendant’s plea at the earliest opportunity.
G This will result in a sentence of 12 months’ imprisonment G
for Charge 1.
H I turn to Charge 2. I have considered the approach to the H
sentencing of trafficking dangerous drugs as laid down by
I
the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 I
HKLRD 290. I have considered the six-step sentencing
approach set out in that authority. In this case, I accept
J and I am satisfied that the defendant was on the evidence J
before me, a storekeeper, therefore his sentence is to be
determined by the relevant tariffs and the quantity of
K dangerous drugs involved. K
L I have considered whether to take into account the fact that L
there are two types of drugs involved here which can be
considered an aggravating factor, which may mean an
M enhancement of sentence. However, I have looked at the M
quantity of each type of drug as well as the packaging and
his role as a storekeeper. I will not, under those
N circumstances, consider this an aggravating factor. N
O I agree that the combined approach in sentencing is O
preferred. Here we have two types of drugs, a cocktail of
drugs. In such a situation, a combined approach will
P usually be correct, preferred and produces the more P
realistic and fair sentence. In the combined approach, I
will look at the overall quantity of drugs rather than
Q Q
individual parcels and types. This is opposed to the
individual approach of calculating the tariff for each type
R of drug based on the quantity and adding the tariffs R
together.
S I have been urged to adopt the approach of the conversion S
rate whereby I will take a starting single tariff for one of
the types of drugs and here it will be cocaine as its
T T
potency is significantly more than the ketamine as is the
starting point mathematically.
U U
CRT27/15.11.2023/JC 3 HCCC 198/2023(1)/Sentence
V V
A The tariffs for the drug cocaine follows the tariff for A
trafficking in heroin, HKSAR v Pedro Nel Rojas [1994] 1 HKC
342. For the present purposes, the tariffs in HKSAR v Lau
B Tak Ming [1990] 2 HKLR 370 says that trafficking in between B
50 to 200 grammes would attract a sentence of between 8 to
12 years’ imprisonment after trial. In the present case,
C C
for the 87.57 grammes of cocaine, after trial that would in
itself attract a sentence of 9 years’ imprisonment.
D D
The tariff for the drug ketamine are set out in the
authority of Secretary for Justice v Hii Siew Cheng [2009] 1
E HKLRD 1. In that case, it was held that the sentence for E
trafficking between 50 to 300 grammes is 6 to 9 years’
imprisonment after trial. Here we have 117.8 grammes of
F F
ketamine. After trial, that would in itself attract a
sentence of 6 years and 10 months’ imprisonment. However,
G in converting that amount of ketamine to cocaine, that would G
be equivalent to 34.18 grammes.
H In adding that converted amount of 34.18 grammes to the H
87.57 grammes of cocaine, this would equal 121.75 grammes of
I
cocaine. Applying the tariffs for cocaine as I have set out I
above, the starting point would therefore mathematically be
9 years and 11 months’ imprisonment.
J J
As I have said above, the methodology of this combined
approach is to first calculate the applicable sentence for
K the most potent and more serious drug, here cocaine, and K
then make an upward adjustment to take into account the
L quantity of ketamine. L
I have considered the three means of cross-checking whether
M the sentence would be manifestly excessive. I have M
considered the absurdity test, the ratio test, and the
conversion test or the combined approach. Counsel agreed
N that this conversion test or combined approach is the most N
favourable starting point for the defendant in the
O circumstances. O
The defendant pleaded guilty at the earliest opportunity and
P he is entitled to a one-third discount. I have also taken P
into consideration the six steps of the Herry Jane Yusuph
authority.
Q Q
After considering mitigation and considering the six steps
R of that authority as well as for the purposes of applying a R
discount of one-third, I will take a starting point of 9
years and 9 months for Charge 2. After the applicable
S discount is applied to that starting point, I reduce it to a S
sentence of 6 years and 6 months for Charge 2.
T T
U U
CRT27/15.11.2023/JC 4 HCCC 198/2023(1)/Sentence
V V
A After considering the totality principle and the facts of A
the case, I will order that the sentences for both Charges 1
and 2 be served concurrently. Accordingly, the defendant is
B therefore sentenced to a total of 6 years and 6 months’ B
imprisonment.
C C
D D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT27/15.11.2023/JC 5 HCCC 198/2023(1)/Sentence
V V