HKSAR v. WONG TSZ KIN AND ANOTHER

DCCC 302/2023

[2024] HKDC 225

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 302 OF 2023

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REASONS FOR SENTENCE

D1 faces a charge of "Acting as a member of a triad society" (Charge 2); a charge of "Conspiracy to traffic in dangerous drugs" (Charge 3; jointly charged with D2); and a charge of "Trafficking in dangerous drugs" (Charge 4; alternative to Charge 3). He pleaded guilty to Charges 2 and 4 (and accepted by the prosecution). I made no order as to Charge 3. The dangerous drugs involved are ketamine and cocaine.

2.  D2's trial is fixed for 3 days commencing on 26 June 2024 before another judge.

Summary of Facts

3.  About 10:30 a.m. on 19 September 2022, PC 27842 stopped D1 for enquiry at No.18 Yip Shing Street, Kwai Chung.  Upon search, the following items were found on D1 :-

Inside D1's black rucksack:

In a resealable plastic bag (E8)

(i)  a plastic bag which contained 0.13 gramme of a solid containing 0.11 gramme of cocaine (E1);

(ii)  16 plastic bags which contained a total of 1.55 grammes of a solid containing 1.46 grammes of cocaine (collectively E2);

(iii)  a resealable plastic bag (E7)  containing 2 plastic bags which contained a total of 1.18 grammes of a solid containing 0.89 gramme of ketamine; and 4 plastic bags which contained a total of 2.53 grammes of a solid containing 1.93 grammes of ketamine (collectively E3);

Inside D1's right shoe:

(iv)  2 plastic bags which contained a total of 5.26 grammes of a solid containing 4.03 grammes of ketamine (collectively E4);

(v)  a plastic bag which contained 2.47 grammes of a solid containing 2.06 grammes of ketamine (E5); and

Inside D1's left shoe:

(vi)  a plastic bag which contained 2.63 grammes of a solid containing 2.15 grammes of ketamine (E6).

4.  The total estimated street value of E1 to E6 was $8,189.

Video recorded interviews (VRIs)

5.  In his 1^st VRI (in relation to Charge 4), D1 described in details how he was "recruited" by D2, his triad "big brother", to sell dangerous drugs (namely cocaine and ketamine).  He also explained how he received instructions from someone whose username is "Shui Ngau" via Telegram.  D1 identified E1 and E2 as "coke"; E3, "Sai Heung" or "B"; and E4 to E6, "Chung Heung".  Regarding the cash found on him, D1 claimed that about $2,700 belonged to him; whereas about $4,000 were collected from clients for the dangerous drugs he had delivered.

6.  In his 2^nd VRI (in relation to Charge 2), D1 claimed that D2 was his "big brother" and that D2's phone number was 9793 2649.  D1 admitted having attended a funeral in Hung Hom on 26 July 2022.  On that occasion, he gave D2 an envelope containing $36.6 cash.  At the funeral, D1 burnt incense and bowed to the photo of the deceased person.  He did not know the deceased person, but believed that she was someone with triad background.  There were about a hundred odd people attending the funeral; D1 believed that they belonged to the "Shui Fong" triad society.

Other evidence

7.  D1's mobile phone contained WhatsApp communication between D1 and someone named "Tai Lo Wang Gor" with phone number 9793 2649 (who D1 says is D2).  The contents of their communication revealed that on 22 July 2022, D2 invited D1 to be a member of a triad society by becoming D2's follower.  D2 instructed D1 to address D2 as "big brother"; to attend an incense burning event on 26 July 2022; and to give D2 an envelope containing $36.6 cash.  Also, between 1 and 19 September 2022, D2 informed D1 that some "work" would be given to D1.  Such "work" involved the delivery of dangerous drugs.  D1 agreed to do so.

Mitigation & Sentence

8.  D1 is 19 and single.  He has a clear record.  Defence counsel Ms. Tsang informed me that after completing Form 6, D1 was unable to find a job.  In mitigation, Ms. Tsang submitted that D1 was not yet 18 when he committed the present offences.  Ms. Tsang explained that D1 started dating but did not have sufficient money, he was then enticed by undesirable friends to engage in drug trafficking.  D1 has been remanded in jail custody for over 16 months and has learned his lesson.  He now appreciates the love and caring of his parents.

9.  Drug abuse has been a long-term problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it in the capacity of a seller, courier or storekeeper)  and that drug traffickers (even fresh young offenders)  would most certainly be punished by long-term imprisonment.  Also, being in financial difficulty (however serious)  is no mitigating factor for committing a crime.

10.  Although D1 is under 21, by virtue of section 109A(1A)  of the Criminal Procedure Ordinance (Cap.221), I need not obtain any pre-sentencing report.  I accept that as a general principle, rehabilitation (rather than punishment)  plays an important role in reforming young offenders.  On the other hand, as a judge, I see day in and day out persons in my court being charged with "drug trafficking".  Many of them were just like D1 – persons in their late teens or early 20s who got involved with dangerous drugs for various reasons.  The court must make it clear that young age is hardly a mitigating factor in drug trafficking cases.

11.  When young people realize that the court would not treat young drug traffickers lightly, there would be, hopefully, fewer willing teenagers; thus making it difficult for criminals to exploit our youngsters.  Unless the quantity of dangerous drugs involved is minor or exceptional circumstances exist, a wrong message would be sent to young people if they could avoid imprisonment owing to their age.  Undoubtedly, most of them are "used" by bad persons (or so they claim).  That is the reason why we need to make young people think twice before they agree to be "used".

12.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see SJ v Hii Siew Cheng [2009] 1 HKLRD 1)  and cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak Ming & others [1990] 2 HKLR 370).  For 10 to 50 grammes of ketamine, the sentence ranges from 4 to 6 years' imprisonment.  For up to 10 grammes of cocaine, it ranges from 2 to 5 years' imprisonment.

13.  In determining the proper starting point for Charge 4, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v Yip Wai Yin & another CACC 80/2003 and HKSAR v Cheng Yat Ming CACC 455/2006.  In the present case, D1 trafficked in a cocktail of drugs consisting of 11.06 grammes of ketamine and 1.57 grammes of cocaine.  For 11.06 grammes of ketamine, applying a strict arithmetical approach, the appropriate starting point is 49 months' imprisonment.  Similarly, for 1.57 grammes of cocaine, 30 months.  In my view, the "combined approach" would arrive at a realistic and fair sentence. 

14.  Although less potent than cocaine, the ketamine found in this case is in a significantly larger quantity.  I decided that the quantity of ketamine shall form the basis of the starting point[1]. Hence, for ease of calculation, I adopt a starting point of 48 months' imprisonment and adjust it upward by 9 months for the cocaine, arriving at 57 months.  With the timely guilty plea, the sentence is reduced to 38 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence D1 to 38 months' imprisonment for Charge 4.

15.  In relation to Charge 2, the evidence came solely from D1's admissions.  As allegedly instructed by D2, D1 attended a funeral of a stranger and gave an envelope containing $36.6 cash to D2.  I adopt a starting point of 6 months' imprisonment for this charge.  With the timely guilty plea, I sentence D1 to 4 months' imprisonment for Charge 2.

16.  Bearing in mind the totality principle, I order the sentences for Charges 2 and 4 to run concurrently[2]. In other words, the total prison term for both charges is 38 months.