HKSAR v. WONG KIN CHUNG AND OTHERS

DCCC 759/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 759 OF 2014

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REASONS FOR SENTENCE

Procedural Matters

This case originates from a series of "controlled buy" dangerous drugs transactions, which all took place in a pub. All transactions involved cocaine, except Charge 2, which involved cocaine and ketamine.

2. Each defendant faces multiple charges of "drug trafficking".  D1 and D3 each face a charge of "Resisting a police officer" as well.

3. D1 pleaded guilty to 2 "trafficking" offences (Charges 3 and 9) and an offence of "Resisting a police officer" (Charge 13).  D2 pleaded guilty to 2 "trafficking offences" (Charges 2 and 9).  D3 pleaded guilty to 2 "trafficking" offences (Charges 6 and 11) and an offence of "Resisting a police officer" (Charge 14).  D4 pleaded guilty to 5 "trafficking" offences (Charges 1, 2, 7, 8 and 12).

4. Upon application by the prosecution, I ordered Charge 5 against D1; Charge 10 against D2; Charge 7 against D3; and Charges 3 and 4 against D4 be left in the court file; not to be proceeded against the respective defendants without leave of court.

Summary of Facts

The Pub

5. In March and April 2014, 5 decoy police officers (PWs 1 to 5) patronized the premises situated at 10^th Floor, Lamma Tower, No.12 Hau Fook Street, Tsim Sha Tsui numerous times.

6. The premises were operated as a pub ("the Pub") with no name or signage.  Its door was kept locked with a CCTV camera installed outside the door.  Its staff members would monitor the CCTV footage and would only allow familiar customers to enter.  

Charges 1 (against D4) and 2 (against D2 and D4)

7. About 12:30 am on 11 March 2014, PWs 2 and 4 visited the Pub.  PW2 ordered drinks from D3.  After a while, PW2 approached D4 to chase up on his beverages.  D4 instead asked PW2 if he wanted 2 packets of cocaine at $800.  PW2 agreed and gave $800 mark money to D4.  D4 gave 2 packets (which contained a total of 0.18 gramme of a solid containing 0.10 gramme of cocaine) to PW2.

8. About 1:00 am the same night, PW1 went to the Pub to join PWs 2 and 4.  PW1 ordered drinks from a staff member known as "Cheung Mo".  Cheung Mo asked PW1 if there was enough cocaine and ketamine whilst D2 told PW1 that the ketamine was a new product.  PW1 asked about the price.  D2 replied $400 for cocaine and $100 for ketamine.  PW1 said he would like 1 packet of each.

9. D2 told D4 to give the drugs to PW1.  D4 took out 2 packets from the drawer in the bar area and handed them to PW1.  PW1 paid $500 with marked money.  The 2 packets contained 0.27 gramme of a solid containing 0.19 gramme of cocaine; and 0.32 gramme of a powder containing 0.23 gramme of ketamine respectively.

Charge 3 (against D1)

10. About 12:15 am on 12 March 2014, PWs 1, 3 and 5 went to the Pub.  About 1:15 am, PW1 was asked whether the cocaine he bought the day before was good enough and if he wanted more.  PW1 wanted one. D1 tried to persuade him to buy more.  PW1 then said he would have 2.  PW1 was given 2 packets (which contained a total of 0.52 gramme of a solid containing 0.30 gramme of cocaine).  PW1 paid $800 with marked money.

Charge 6 (against D3)

11. About 12:25 am on 18 March 2014, PWs 3 to 5 went to the Pub.  They met D3 in the lift lobby and D3 took them in.  After a while, D3 asked PW5 if he wanted cocaine.  PW5 asked about the price for 2 packets and D3 replied $800.  PW5 paid D3 $800 with marked money.  D3 went away briefly and returned with 2 packets (which contained a total of 0.45 gramme of a solid containing 0.32 gramme of cocaine).  He handed them to PW5.

Charges 7 and 8 (both against D4)

12. About 11:00 pm on 18 March 2014, PWs 2 and 3 went to the Pub.  PW2 was told that ketamine that day was not good, but cocaine was.  PW2 said he would have cocaine.  D4 later handed 2 packets (which contained a total of 0.40 gramme of a solid containing 0.18 gramme of cocaine) to PW2.  He paid $800 with marked money.

13. About 1:15 am the same night, D4 asked PW3 if he wanted more cocaine.  PW3 agreed and D4 left.  Upon her return, D4 handed 2 packets (which contained 0.40 gramme of a solid containing 0.17 gramme of cocaine) to PW3.  He paid $800 with marked money.

Charge 9 (against D1 and D2)

14. About 2:15 am on 21 March 2014, PWs 1, 4 and 5 went to the Pub.  About 3:00 am, D1 and D2 appeared and greeted them.  D1 introduced D2 to them as the person in charge of the Pub.  D2 asked D1 to provide 2 packets of cocaine to them for free.  D1 and D2 then walked away and returned shortly.  D1 gave 2 packets of cocaine to the 3 decoy officers free of charge.  PW5 insisted on paying and he paid D1 $800 with marked money.  The 2 packets were found to contain a total of 0.43 gramme of a solid containing 0.20 gramme of cocaine.

Charge 11 (against D3)

15. About 2:30 am on 30 March 2014, PWs 1 to 3 went to the Pub.  About 3:00 am, PW1 went to the bar area to order drinks.  D3 asked PW1 if he wanted some cocaine.  PW1 agreed and D3 asked Cheung Mo to take 2 packets of cocaine to PW1.  Cheung Mo gave 2 packets (which contained a total of 0.20 gramme of a solid containing 0.09 gramme of cocaine) to PW1.  PW1 paid Cheung Mo $800 with marked money.

Charge 12 (against D4)

16. About 2:20 am on 9 April 2014, PWs 1 and 2 went to the Pub.  D4 asked PW1 how much cocaine he would like to have.  PW1 said 2.  D4 took 2 packets from the bar and handed them to PW1.  PW1 paid $800 with marked money.  The 2 packets were found to contain a total of 0.48 gramme of a solid containing 0.21 gramme of cocaine.

Charges 13 (against D1) and 14 (against D3)

17. The operation turned overt on 9 April 2014. Some staff members of the Pub were arrested inside the premises.  D1 was spotted outside Ground Floor of Lamma Tower, the building at which the Pub was situated.  Upon being arrested, D1 shouted "Big Brother" and alerted D3 and another male surnamed LAW, who both rushed towards the officer arresting D1.  D1, D3 and LAW were warned to calm down, but they ignored the warning and put up a struggle when being arrested.  LAW, who was not involved in the "trafficking" offences, shouted in foul language saying that since D1 and D3 were his followers, the matter became his business.

18. In the course of arrest, D1 shoved DPC 873 to the ground causing abrasion, redness and tenderness on both of his elbows.  D3 scratched DPC 3734 and caused tenderness and redness on his arm.

Post-arrest Matters

19. Under caution, D1 to D4 refused to answer any questions.

20. D1 to D4 were all positively identified by the respective decoy officers either at scene or in subsequent identification parades.

Mitigation

D1

21. He is 27 and single.  He has 10 conviction records which include 3 "simple possession" offences and numerous violence-related offences.  D1's counsel Ms. LEE informed me that D1's parents got divorced and then his mother passed away.  D1 was cared for by his maternal grandmother when he was young.  D1 started consuming cocaine in 2010.  He was given a DATC Order in November 2011.

22. After he was discharged from DATC, D1 began to assist his father with his cemetery business, earning about $10,000 per month.  Ms. LEE submitted that D1's girlfriend became pregnant last Christmas. They had planned to get married by the end of 2014.  D1 was in need of money, but dared not troubling his father.  Through the introduction of a friend named "Ah Keung", D1 began to work in the Pub in March 2014.  Ah Keung suggested D1 to earn some extra money by selling drugs, from which D1 could earn $50 for each sale.  Ms. LEE informed me that after D1 was arrested, his girlfriend had a miscarriage due to stress.  She has also left him as a result of the trauma.  

23. Ms. LEE further submitted that in the present case, drugs were only sold to familiar customers.  Letters written by D1 and his father were placed before me; their contents are duly noted.

D2

24. He is 36 and married.  He has 3 conviction records, none of which are related to dangerous drugs.  D2's counsel Mr. NG emphasized that D2's last conviction took place over 17 years ago.  His latest conviction in April 2014 is a driving offence, which caused him to lose his driving license.  Having lost his privilege to drive, a friend named "Ah Keung" introduced D2 to work in the Pub earning $600 per night.  D2 had a wife in the mainland.  His wife became pregnant before he was arrested in the present case.  D2 wanted to work hard to earn more money in order to move out of his mother's place.  Unfortunately, D2 has lost contact with his wife; he does not know what happened to his wife and child.

25. In mitigation, Mr. NG submitted that the Pub had a limited clientele with controlled customer access.  In other words, drugs were not sold in a public place with easy access by anyone.  Hence, the harm brought about by the drug trafficking activities within the Pub was limited. Furthermore, there is no evidence of any youngsters involved.  The quantities of drugs sold in each sale were also minimal.  Finally, Mr. NG explained that since D2 is older than his colleagues in the Pub, he earned the nickname of "Chief"（老總）, but D2 was not the boss.  Unlike D1, D2 did not earn extra from selling drugs in the Pub.  Mr. NG also submitted that D2 has given up his triad membership long time ago.

D3

26. He is 33 and single.  He has 1 conviction record, which involves 2 "trafficking" offences.  He was sentenced to a total of 9 years and 4 months' imprisonment in August 2007, and was released from prison in May 2013.  D3's counsel Ms. WONG submitted that at the time of the offences, D3 was engaged and the wedding banquet was planned to be held in September 2014.  As shown by the receipt, he paid the deposit for his wedding banquet the day before he was arrested.  Ms. WONG explained that D3 is very close to his maternal aunt, who was suffering from cancer.  He and his girlfriend decided to get married to fulfill the wish of his aunt. Unfortunately, his aunt passed away in April 2014 when D3 was being remanded in custody.

27. Ms. WONG submitted that D3 was released from prison in May 2013.  Thereafter he tried to move onto the right track.  He started his own graphic design business at home.  As he began to feel the financial pressure from getting married, he took up a part-time bartending job at the Pub earning $600 per night.  A bundle of mitigation documents was placed before me; their contents are duly noted.

D4

28. She is 30 and single.  She has a clear record.  D4's counsel Ms. WONG informed me that D4 obtained the Yi Jin Diploma after completing F.5.  She then worked in a social welfare organization.  In 2008, she resigned from her job and went to Australia for working holiday.  In terms of community service, D4 joined the Civil Aid Service as a cadet and has worked her way up to be a supervisor.  She has contributed much of her free time in voluntary work.

29. Ms. WONG submitted that at the time of the offences, D4 was a full-time waitress at another restaurant earning $8,000 per month.  She wanted to earn some extra money so she took up a night shift waitress job at the Pub.  She committed the offences out of moments of greed.  A bundle of mitigation documents was placed before me; their contents are duly noted.

Sentence

30. A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders.

31. The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370) and ketamine (see  SJ v HII Siew Cheng [2009] 1 HKLRD 1).  For up to 1 gramme of ketamine, the sentence is within the court's discretion.  For up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years' imprisonment.

32. I have also borne in mind the comments made by McWalters J (as he then was) in HKSAR v PAU King Kong [2013] 3 HKLRD 676  on sentencing a drug trafficker selling different types of drug to an undercover police officer on multiple occasions.[1] 

D1 (Charges 3, 9 and 13)

33. In Charges 3 and 9, D1 trafficked in 0.30 gramme and 0.20 gramme of cocaine respectively.  For such small quantities, a starting point slightly lower than 2 years' imprisonment is appropriate.  I adopt 21 months as the starting point for each charge.  A one-third discount is given for the guilty plea, reducing the sentence to 14 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  I sentence D1 to 14 months' imprisonment each for Charges 3 and 9.

34. For Charge 13, resisting a police officer in due execution of his duty is a serious matter.[2]  D1 shoved DPC 873 to the ground causing abrasion, redness and tenderness on both of his elbows.  Police officers carrying out their duties must be protected.  I adopt a starting point of 4.5 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 3 months.  The sentence for Charge 13 is 3 months' imprisonment.

35. Having considered the totality principle, I order: (i) 3 months in Charge 9 to run consecutive to Charge 3; and (ii) Charge 13 to run consecutive to Charges 3 and 9; arriving at a total prison term of 20 months for all 3 charges.

D2 (Charges 2 and 9)

36. In Charge 2, D2 trafficked in 0.19 gramme of cocaine and 0.23 gramme of ketamine.[3] The quantity of ketamine is almost negligible.  Had it not been there, I would have adopted 21 months' imprisonment as the starting point.  With the presence of ketamine, I raise the starting point to 24 months.  In Charge 9, D2 trafficked in 0.20 gramme of cocaine.  I adopt 21 months as the starting point.  A one-third discount is given for the guilty plea, reducing the sentence to 16 months and 14 months respectively.  Apart from this, I see no other mitigating factors which warrant any further discount.  I sentence D2 to 16 months' and 14 months' imprisonment respectively for Charges 2 and 9.

37. Having considered the totality principle, I order 3 months in Charge 9 to run consecutive to Charge 2; arriving at a total prison term of 19 months for both charges.

D3 (Charges 6, 11 and 14)

38. D3's only conviction record is 2 "trafficking" offences in the same case.  I would not treat him as a repeated offender by raising the starting points for the present offences.

39. In Charges 6 and 11, D3 trafficked in 0.32 gramme and 0.09 gramme of cocaine respectively.  I adopt 21 months' and 18 months' imprisonment as the respective starting points for each charge.  A one-third discount is given for the guilty plea, reducing the sentence to 14 months and 12 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  I sentence D3 to 14 months' and 12 months' imprisonment respectively for Charges 6 and 11.

40. For the same reasons as Charge 13, I adopt a starting point of 4.5 months' imprisonment for Charge 14.  A one-third discount is given for the guilty plea, reducing the sentence to 3 months.  The sentence for Charge 14 is 3 months' imprisonment.

41. Having considered the totality principle, I order: (i) 3 months in Charge 11 to run consecutive to Charge 6; and (ii) Charge 14 to run consecutive to Charges 6 and 11; arriving at a total prison term of 20 months for all 3 charges.

D4 (Charges 1, 2, 7, 8 and 12)

42. In Charges 1, 7, 8 and 12, D4 trafficked in 0.10 gramme, 0.18 gramme, 0.17 gramme and 0.21 gramme of cocaine respectively.  I adopt 21 months' imprisonment as the starting point for each charge.  In Charge 2, D4 trafficked in 0.19 gramme of cocaine and 0.23 gramme of ketamine.  I adopt a starting point of 24 months' imprisonment.  A one-third discount is given for the guilty plea.  Apart from this, I see no other mitigating factors which warrant any further discount.  I sentence D4 to 14 months, 16 months, 14 months, 14 months and 14 months respectively for Charges 1, 2, 7, 8 and 12.

43. When considering the totality principle, I note that D4 is a fresh offender and has an impressive community and voluntary service record.  I will be slightly lenient on her.  I order:  (i) 2 months in Charge 1 to run consecutive to Charge 2; (ii) 2 months in Charge 7 to run consecutive to Charges 2 and 1; (iii) 2 months in Charge 8 to run consecutive to Charges 2, 1 and 7; and (iv) 2 months in Charge 12 to run consecutive to Charges 2, 1, 7 and 8; arriving at a total prison term of 24 months for all 5 charges.