HKSAR v. WONG HO CHEUNG

DCCC 607/2024

[2025] HKDC 977

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 607 OF 2024

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REASONS FOR SENTENCE

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1.  D pleaded guilty to one charge of “trafficking in dangerous drugs”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Facts

2.  Around 1724 hours on 29 December 2023, D was seen acting furtively by a police officer patrolling along Shanghai Street, Mong Kok and was intercepted for an identity check.  Upon his failure to produce his identity card, D was arrested and taken to a police station where a body search was conducted on him.  From the back pocket of the pair of black shorts that D was wearing, the police found and seized:

(i)  2 transparent resealable plastic bags containing 11 transparent resealable plastic bags containing a total of 2.42 g of a solid containing 2.23 g of cocaine;

(ii)  2 transparent resealable plastic bags containing 19 transparent resealable plastic bags containing a total of 14.4 g of a solid containing 12.0 g of ketamine; and

(iii)  2 transparent resealable plastic bags containing 21 transparent resealable plastic bags containing a total of 16.7 g of a solid containing 13.8 g of ketamine.

3.  D was arrested for trafficking in dangerous drugs.  Under caution, he claimed that the dangerous drugs were for his own consumption.

4.  At the material time, D was in possession of a mobile phone and cash of HK$4,497.60.

5.  House search was conducted with nil result.

6.  The total estimated retail price of the dangerous drugs was around HK$16,800 in December 2023.

Defendant’s Background

7.  The defendant is 29 years old.  He is single and resides with his parents and a younger sister. He claims to be a construction worker.

8.  He has previous convictions for 6 offences, 2 of which are trafficking in dangerous drugs, for which he was convicted on 21 April 2015 and 7 December 2018 respectively.  He was last discharged from prison on 11 February 2023.

Mitigation

9.  Defence counsel Mr Robert Chan submitted that this case involves a mixture of drugs, and that the combined approach of assessing sentence would be more appropriate than the individual approach.  He then referred to the methodology for this approach laid down by the Court of Appeal in HKSAR v Islam Majharul [2020] 3 HKLRD 146 at [27] and assessed the sentence in accordance with the 7 steps under this methodology.

10.  In his identification of the base drug, Mr Chan chose ketamine which formed the bulk of the mixture of drugs.

11.  In his calculation of the starting point for the base drug, Mr Chan referred to the sentencing band of 4 to 6 years’ imprisonment for trafficking in between 10 to 50 g of ketamine in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  Applying this band arithmetically to 25.8 g of ketamine would yield a sentence of 57 months.

12.  In his determination of how much the above 57 months starting point should be increased for the quantity of the other drug, namely cocaine, Mr Chan referred to the cases of AG v Pedro Nel Rojas [1994] 2 HKCLR 69, R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138 for the sentencing band of 2 to 5 years imprisonment for trafficking in up to 10 g of cocaine.  Applying this band to 2.23 g of cocaine would result in a sentence of 32 months.

13.  He then embarked on calculating the results for the absurdity test, the conversion test and the ratio test.  For the absurdity test, if all the drugs were cocaine, the starting point would be 76 months.  For the conversion test, if all the drugs were converted to ketamine, the starting point would be 60 months; whereas the starting point would be 61 months if all the drugs were converted to cocaine.  For the ratio test, the starting point would be 60 months.

14.  Mr Chan submitted that the prosecution agreed with the results of the 3 tests.

15.  Mr Chan suggested that the 57 months for ketamine be adjusted to 59 months on account of the amount of cocaine in the mixture of drugs.

16.  On the question of whether the sentence should be enhanced because 2 kinds of drugs are involved, Mr Chan asked the court not to enhance the sentence because the amount of cocaine is only about 8% of the total amount of drugs seized.  He referred to the District Court case of HKSAR v Chan Lok Him [2019] HKDC 995 in support of his contention that courts have not added the starting point in previous serious cases involving trafficking in cocaine and ketamine.

17.  Mr Chan conceded that D’s conviction record, which includes 2 convictions for trafficking in dangerous drugs, is an aggravating factor for which a 2-month increase can be made.

18.  As for mitigating factors, apart from guilty plea, D claimed that a small part of the drugs in question was for his own consumption and asked the court to exercise its discretion to lower the notional starting point by 4 months.

19.  In support of the self-consumption claim, Mr Chan pointed to: (i)  D’s admission to the police upon his arrest that the drugs were for his own consumption; (ii)  his urine test result showing positive for cocaine for urine collected from him on 31 December 2023; (iii)  his 2 convictions for trafficking in dangerous drugs; (iv)  D’s claim that he became a drug addict around 2022 and has been taking cocaine and ketamine almost daily; and (v)  D’s claim of being in gainful employment with a monthly income of around $30,000 at the material time.

20.  Mr Chan suggested that after all the deductions, a final sentence of 38 months would seem fair and just.

Sentencing considerations

21.  I will adhere to the six-step approach mentioned in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 in assessing sentence for the charge, which involves trafficking in 2 types of drugs, namely, cocaine and ketamine, with a total quantity of 28.03 g.

22.  Sentencing guidelines for trafficking in cocaine can be found in the recent case of Huang Ruifang (No 3) where the Court of Appeal handed down revised guidelines for trafficking in “heroin and cocaine”.  Trafficking in 2.23 g of cocaine would come within the band “Up to 10 grammes of narcotic: 2 to 5 years’ imprisonment”.  Applying this guideline arithmetically to 2.23 g would yield a sentence of 32 months’ imprisonment.

23.  Sentencing guidelines for trafficking in ketamine can be found in the case of Hii Siew Cheng.  Trafficking in 25.80 g of ketamine would come within the band “10 to 50 g - 4 to 6 years’ imprisonment”.  Applying this guideline arithmetically to 25.80 g would yield a sentence of 57 months’ imprisonment.

24.  In assessing D’s role and culpability, I bear in mind that “Absent an admission, or direct or circumstantial evidence, establishing that he is himself dealing with dangerous drugs to others, the courts have generally treated him as a courier or storekeeper, to which the guidelines apply arithmetically.”[1]  There being no indications to the contrary, I would treat D as a courier.

25.  I agree with defence counsel that the combined approach would yield a fairer result, but I note that instead of using the most serious drug (which, in this case, is cocaine)  as the base drug, counsel used the drug with the larger quantity ie ketamine, for that purpose.

26.  However, the Court of Appeal in HKSAR v Cheung Wai Man [2019] 1 HKLRD 817, paragraph 39 said: “The other is the ‘combined approach’ where the applicable sentence for the more or most serious drug (in terms of potency)  is first calculated, and then adjusted upwards to take into account significant quantities of the other (less serious)  drugs.”

27.  I would follow this judgment and use cocaine, which is more potent than ketamine, as the base drug.

28.  According to the absurdity test, using cocaine as the basis of this test and applying the tariff arithmetically, trafficking in 28.03 g of cocaine would yield a starting point of 76 months.  This is the result that counts for the absurdity test.

29.  According to the conversion test:

(a)  conversion to ketamine, the result is 60 months;

(b)  conversion to cocaine, the result is 61 months.

30.  According to the ratio test, the result is 60 months.

31.  I note that the results of my three tests agree with Mr Chan’s results.

32.  Taking account of the presence of a significant quantity of ketamine, I will adjust the 32-month starting point for cocaine upwards to 60 months as the starting point for trafficking in this mixture of drugs.

33.  There are two aggravating features: (i)  D’s previous convictions for the same offence as the one in this case; and (ii)  he was trafficking in more than one type of drugs.

34.  I am not convinced by the argument and the decision in the District Court case of Chan Lok Him that by reason of the small quantity of cocaine in our case, it should be ignored in the consideration of the aggravating feature of trafficking in a multiplicity of drugs.  What matters is not so much the quantity of a particular component in the mixture of drugs as the fact that “in such a situation the trafficker is able to cater to a wider market than the trafficker in only one kind of drug.”[2]

35.  For these two aggravating features, I would increase the starting point by 6 months, bringing the notional starting point to 66 months.

36.  Two mitigating factors were advanced on behalf of D: (i)  his timely guilty plea; and (ii)  part of the drugs were for his own consumption.

37.  Clearly his timely plea of guilty will entitle him to a one-third discount in sentence.

38.  In considering the “self-consumption” claim, I bear in mind the factors to be considered in establishing such a claim as suggested in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and repeated in paragraph 51 of the judgment in Cheung Wai Man.

39.  I also bear in mind the warning given by the Court of Appeal in Cheung Wai Man’s case that there is a real danger of abuse in this avenue of mitigation, and the Court’s emphasis that the claim of self-consumption should be established to the court’s satisfaction with credible and reliable information and material[3].

40.  In advancing this mitigating factor, apart from saying that D does not contend that all or a significant proportion of the drugs were for his own consumption and hence no Newton hearing will be required, and that a only a small part of both types of drugs was for self-use, Mr Chan could not assist the court any further by indicating how much of the drugs were for D’s own consumption.  He merely said in his written submissions that “D hopes that the court can consider that a small part of the drugs in question was for D’s own use.”

41.  Apart from D’s urine test results, there is no credible and reliable information and material put before the court in support of such a claim.  It is true that at the time of his arrest, D did tell the police that the drugs seized from him were for his own consumption.  However, his present plea of guilty to the trafficking charge contradicts that claim.

42.  Mr Chan also points to D’s previous convictions for drug trafficking in support of D’s self-consumption claim.  I have no idea how these convictions, which are D’s only drug-related convictions, can possibly help him in this regard.  If anything, these convictions show that he was a trafficker, not a drug user; and these convictions occurred years before he allegedly became a habitual user of cocaine and ketamine in around 2022.

43.  Then assertions were made from the bar table in an attempt to support the self-consumption claim.  One such assertion was that D had started taking cocaine and ketamine almost on a daily basis since 2022.  However, there is nothing about ketamine in D’s urine test report.

44.  Another assertion made on behalf of D was that he was earning $30,000 a month at the material time.  Again, I see not a shred of credible material about his financial means, or any information about his expenses, in particular, expenses associated with his drug-taking.

45.  On the other hand, the facts of the case show that the drugs found on D were all packaged into small packets (11 packets of cocaine and 40 packets of ketamine)  and were found in the same place i.e. the rear pocket of D’s shorts.  D was on the street when he was intercepted, obviously with all the drugs in his back pocket already.  There is nothing to differential between the part allegedly for D’s own use and the part for trafficking.

46.  There is no mention either in the summary of facts or in mitigation that any drug-taking paraphernalia was found either on his person or in his house.

47.  All in all, I am not satisfied that any part of the drugs seized in this case was for D’s own consumption.

48.  That leaves D’s plea of guilty as the only effective mitigating factor.  After a one-third discount for this, the notional starting point of 66 months is reduced to 44 months’ imprisonment.