HKSAR v. KWOK CHI-CHUNG

DCCC 257/2020

[2021] HKDC 79

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 257 OF 2020

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant has pleaded guilty to four charges on this indictment: Charges 1 through to 3 and Charge 5. He has admitted the summary of facts. I have convicted him on the charges he pleaded guilty to. Those are:

(1) Charge 1, trafficking in a dangerous drug;

(2) Charge 2, possession of arms without a licence;

(3) Charge 3, driving while disqualified; and,

(4) Charge 5, using a motor vehicle without third party insurance.

2.  The facts are simple.  They arise out of the investigation of a vehicle that the defendant was driving on the evening of 21 October 2019, which was found stopped at a set of traffic lights in Tsim Sha Tsui.  The defendant was in the driver’s seat and there was a woman in the car as well.  Both of these two people were unconscious at the time they were found, which was at 3.37 in the afternoon. 

3.  There was a search conducted on the car and, in a compartment to the right of the steering wheel, police found a single plastic bag which contained some 13 other plastic bags which contained cocaine.  The narcotic content of that cocaine was 2.18 grammes. 

4.  There was also a plastic bag which contained a further set of bags, which contained some 8.56 grammes of ketamine as its narcotic content. 

5.  The overall total of the value of that drug given by the prosecution, and not challenged, is $8,564.

6.  In respect of the 2nd charge, in another compartment in the driver’s door, a spray canister was found, which was a spray can of nonivamide, which is a pepper spray, with effects of burning sensation on soft tissues.  The defendant did not have any licence for that spray and later he said it was for his self-defence.

7.  The defendant does not have a driving licence. He is also disqualified from obtaining a driving licence and so Charge 3 was proved by those facts which are admitted.

8.  As the defendant did not have a licence, the third party insurance on the car did not cover the defendant’s driving of that car on that occasion, so Charge 5 was accordingly proved by his plea to Charge 3.

9.  The defendant was interviewed under caution.  At the time, he said that the drugs were his and had nothing to do with the other person in the car and the “anti-wolf” spray was for his own self-protection. 

10.  He later expanded upon those admissions in a video recorded interview taken the next day.  He said that he had been unemployed. He earned $400 a day as a car washer prior to his unemployment.  He had been celebrating a friend’s birthday.  He had bought the drug for $6,000 and he had fallen asleep on the way home to the passenger’s home.

11.  The defendant’s background shows him to still be a young man.  He is 22 years old, came to Hong Kong in 2002, was educated up to Form 2 level.  He is single, lives with his parents, had been employed in a car business prior to his arrest but had been made unemployed shortly before his arrest.

12.  As far as his criminal record is concerned, the defendant has been convicted of offences since 2012, when he was a juvenile, for robbery.  He was sent to a juvenile home. 

13.  His first conviction in respect of drugs is in 2013 for trafficking in a dangerous drug.  That was a case in the Magistrate’s Court, where he was then sent to a Drug Addiction Treatment Centre and must at that time have been considered to be a person addicted to drugs back in 2013, some seven years ago. 

14.  Since then, he has been further convicted of possession of a dangerous drug in 2016, again sent to a Drug Addiction Treatment Centre.  Convicted in 2018 of trafficking in a dangerous drug and also motoring offences; was sentenced to terms of imprisonment for those offences.  He has also further been -- was convicted on the same time for possession of a dangerous drug, receiving a sentence of imprisonment.

15.  The defendant’s history of conviction appears to support his contention before the court today that he has been a drug addict for a quite considerable period of time now for such a young man and that a portion of the drugs that he had in his possession would have been for his own consumption, which is part of his mitigation today.

16.  As far as his other mitigation is concerned, he says he is remorseful, pleads guilty and has admitted the facts.  He has written to the court about his remorse about becoming a drug addict.  He asks for leniency.  The defendant is of course aware of the difficulty of breaking such addictions and, so far, sentencing has not been able to assist him in that endeavour.

17.  I do note in respect of his record of previous convictions that previous convictions for trafficking in dangerous drugs are of course an aggravating factor in the sentencing of this case and I will have to consider that in the overall sentence I pass.

18.  As far as the process of sentencing is concerned, the court must of course first determine a starting point for sentence in respect of each of the four charges which the defendant has pleaded guilty to and then the defendant is entitled to a full one-third discount from that total.

19.  In respect of the 1st charge, however, there is another mitigating factor of some significance and that is the defendant’s position that a substantial portion of the drugs, a significant portion, would have been for his own self-consumption, and I will make a determination about that now before I go on to detail the individual sentences I will impose for each charge.

20.  The basis of the defendant’s submission is found in his mitigation document and counsel in compiling that document writes as follows, that they were instructed about 50 per cent of the drugs, both the cocaine and ketamine, were intended for self-consumption by the defendant.

21.  The factual basis of that must be assessed by the court.  In support of that submission, firstly there is the fact that the defendant is a drug addict.  He has certainly been on his submission using both drugs since the age of 16.  I have noted already he has convictions for possession of drug, for which he has been sent to a Drug Addiction Treatment Centre on two occasions. 

22.  The quantity of the drug involved is not particularly substantial by the standards dealt with by the court.  The defendant maintains that his consumption of drug would be about 0.1 grammes of cocaine or 0.2 grammes of ketamine each day or every other day, which would mean it would take about one month to consume the amount the defendant possessed of those drugs for self-consumption. 

23.  I accept that that is not an unreasonable submission.  The defendant had bought the drugs the night before.  The defendant had the means with which to buy the drugs from his employment prior to being made unemployed.  The defendant admitted possession of the drugs at an early stage.  The defendant also, I am told, informed the police as to how he would have consumed the drugs on his own.

24.  Taking all those factors into account, what the defendant has to establish simply is that he would have consumed a significant portion of the drugs himself, not necessarily to actually set out the proportion that the court finds, just simply to make a finding in respect of the drugs that the court is satisfied that a significant portion of the drugs would be consumed himself.

25.  If that is the case, then a discount of between 10 to 25 per cent from the original starting point can be given by the court. An authority for that proposition is HKSAR v Choi Chun Wo, CACC 273/2017.  Where a significant proportion of the drug is for the defendant’s own self-consumption, then a discount of self-consumption between 10 to 25 per cent can be awarded by the court.  It is necessary for the defendant to establish the threshold of significant proportion for that discount to be given to the defendant.

26.  I am satisfied on the information I have before me that I can sentence the defendant on the basis that a significant proportion of the drugs will be used for his own consumption.

27.  Now I turn to the actual sentencing of the defendant. 

28.  On the 1st charge of trafficking, there is a combination of drugs here, so two separate guidelines need to be considered. Firstly, there is the guideline in respect of cocaine.  The guideline, in fact, for heroin is adopted by the courts in this case and that can be found in the case of R v Lau Tak Ming & Another, CACC 230/1989.  For a sum of less than 10 grammes, a starting point between 2 to 5 years’ imprisonment will be adopted.  In this case, the narcotic content of the cocaine is 2.18 grammes, which would put the starting point for sentence around 2½ years’ imprisonment based on a mathematical calculation.

29.  The other drug concerned is ketamine.  The guideline is in the case of Secretary for Justice v Hii Siew Cheng. That is CAAR 7/2006.  A starting point of between 2 to 4 years’ for 1 to 10 grammes of ketamine.  In this case, the amount of ketamine involved is 8.56 grammes, so it is towards the higher end of that bracket.  Again, a mathematical calculation will put the starting point for sentence for the ketamine at around 3 years and 8 months’ imprisonment.

30.  There is a combination of drugs in this case. The court must arrive at a final starting point for that combination and come up with a figure that satisfies a cross-check where the absurdity, the conversion and the ratio tests can be applied. 

31.  Applying the combination test, I would find that the overall starting point for sentence for this group of drugs would be 51 months’ imprisonment. 

32.  The defendant has an aggravating factor of previous convictions.  For that, I would add 3 months’ imprisonment to this overall starting point, which gives a starting point of 54 months’ imprisonment. 

33.  The defendant, as I said, is entitled to a discount, I find, for his own consumption.  I would find that would be a discount in excess of the 15 per cent and, taking an overall round figure for that, I will discount the starting point for sentence of 54 months by 9 months to 45 months’ imprisonment.  The defendant is then entitled to a one-third discount from that sum, which gives a final sentence on the 1st charge of 30 months’ imprisonment.

34.  Turning to the 2nd charge, the defendant is in possession of a pepper spray for his own protection.  I take a starting point of 6 months’ imprisonment on that charge and reduce that to 4 months’ imprisonment for the defendant’s plea of guilty.

35.  I turn to the motoring offences.  I consider that immediate sentences of imprisonment are appropriate of these, together with disqualification.  Defendant has already committed these offences before, so they are second offences. 

36.  In respect of both Charge 3 and Charge 5, I am going to take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendant’s plea of guilty on both charges.  There will be a 36 months’ disqualification on each charge.

37.  I must return now to the overall total sentence.  There is an overlap in sentences.  There are different kinds of offences, although they were all committed on the same day, and I will take that into consideration in the overall total.

38.  The overall total sentence I am going to impose is 33 months’ imprisonment.  I will achieve that this way.  I am going to order that 2 months of Charge 2 be served consecutively to Charge 1, and Charges 3 and 5 be served concurrently to each other, but 1 month consecutively to Charges 1 and 2.  That leaves a total overall sentence of 33 months’ imprisonment and total overall disqualification of 36 months.  That is my sentence.