HKSAR v. TONG HON KO

DCCC 510/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 510 OF 2013

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs" (Charge 1) and a charge of "Failure to undergo Impairment Test" (Charge 2).

2.  The dangerous drugs involved are ketamine and cocaine.

Summary of Facts

Charge 1

3.  About 9:00 pm on 19 January 2013, a private car RE 7943 ("the Car") was blocking Mr. CHO's (PW1) car at Peace Avenue near Argyle Street, Mongkok.  PW1 sounded the horn but there was no response.  He thus reported the matter to the Police.

4.  Before the Police arrived, PW1 saw the defendant alighting from the Car and returning to it momentarily.  The Car then began to move slowly and in an unsteady manner.

5.  About 9:30 pm, PC 13473 (PW2) arrived at the scene and intercepted the defendant, who was the driver of the Car and the only person in it.  PW2 saw some white powder below the defendant's right nostril.  The defendant was also slow in response.  PW2 asked the defendant if he was feeling unwell.  The defendant said he had "taken stuff".

6.  PW2 arrested the defendant and searched the Car.  He found a plastic box stored in the compartment located between the driver seat and front passenger seat.  In that plastic box, there were 3 resealable plastic bags (collectively P1; later found to contain a total of 48.22 grammes of a powder containing 39.03 grammes of ketamine) and 44 resealable plastic bags (collectively P2; later found to contain a total of 11.54 grammes of a solid containing 9.65 grammes of cocaine).  Under caution, the defendant admitted that P1 and P2 were "K chai" and "coke".

7.  PW2 continued to search the Car and found another resealable plastic bag (P3; later found to contain 1.28 grammes of a solid containing 1.07 grammes of cocaine) from the armrest of the driver seat.

8.  About 10:40 pm, the Police requested the defendant to undergo the Drug Influence Recognition Observation ("DIRO") under section 39M(1) of the Road Traffic Ordinance.  The defendant was warned of possible prosecution should he fail to comply.  He refused to undergo DIRO.  He was then arrested and cautioned.  When asked about his reasons for refusal, the defendant said he would not do it.

Charge 2

9.  Upon his refusal to undergo DIRO, the Police requested the defendant to undergo the Impairment Test ("IT") under section 39M(1) of the Road Traffic Ordinance.  The defendant was warned of possible prosecution should he fail to comply.  He refused to undergo IT. He was then taken back to a police station where he was arrested and cautioned.  When asked about his reasons, the defendant said he did not want to do it.

10.  In his video recorded interview, the defendant remained silent.

Mitigation

11.  The defendant is now 40.  He has 4 conviction records involving a total of 12 offences, 9 of which are related to dishonesty. Defence lawyer Mr. TANG informed me that the defendant is married with 2 step-sons (aged 10 and 6).  His wife and 2 step-sons are mainlanders residing across the border.  He contributes $10,000 each month to maintain them.  The defendant also provides financial support to his half brother (Mr. YEUNG), who is suffering from cancer.

12.  Mr. TANG submitted that the defendant started taking drugs in 2011.  As revealed in the Summary of Facts, the defendant had taken drugs at the time of the offences.  Mr. TANG also submitted that Exhibit P3, which was kept separately from other drugs, was for the defendant's consumption.  Furthermore, 1/3 of the ketamine found was also for his own consumption.  Mr. TANG asked for leniency by stressing the defendant's lack of drug-related convictions and guilty pleas. 

Sentence

Charge 1

13.  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.

14.  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 10 to 50 grammes of cocaine, the sentence ranges from 5 to 8 years' imprisonment.

15.  In determining the proper starting point, 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.

16.  In the present case, the defendant trafficked in a cocktail of drugs consisting of 39.03 grammes of ketamine and 10.72 grammes of cocaine.  For 39.03 grammes of ketamine, the appropriate starting point is 5.5 years.  For 10.72 grammes of cocaine, the appropriate starting point is 5 years.  I am of the view that the "combined approach" would arrive at a realistic and fair sentence. 

17.  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, I adopt a starting point of 5.5 years' imprisonment and adjust it upward by 18 months for the cocaine, arriving at 7 years.

18.  Regarding the defendant's claim for self-consumption, I have reminded myself of the relevant sentencing principles.[2] There is cogent evidence showing that he is a drug user, the possibility of self-consumption thus exists.  As to the quantity, based on the location from which it was found, I accept that Exhibit P3 (1.07 grammes of cocaine) may be for his own consumption.  In respect of the ketamine, Exhibits P1 and P2 were stored together in a plastic box.  I also notice that the quantities of ketamine contained in each of the 3 plastic bags in Exhibit P1 are unevenly distributed.  Hence, I have reservation about 1/3 of the ketamine intended for the defendant's own use.  I am prepared to reduce the sentence to 6.5 years to reflect the overall discount for self-consumption.

19.  Finally, a one-third discount is given for the guilty plea, reducing the sentence further to 52 months.   The defendant is sentenced to 52 months' imprisonment for Charge 1.

Charge 2

20.  Charge 2 is a relatively new but serious offence since, as I recall, both the Hong Kong community and legislature saw an imminent need to combat against people driving under the influence of drugs. Drivers refusing to undergo the Impairment Test will defeat the entire mechanism, which, in my view, is the reason why the penalty for this charge is the same as the offence of "Driving under the influence of a specified illicit drug".[3] The mandatory disqualification period of 5 years even for 1^st conviction[4] reflects the seriousness of both offences.

21.  I have had sight of the defendant's traffic record.  He was granted his driver licence in June 2008, and only has a few fixed penalty records.  I certainly will treat him as having a clear traffic record.

22.  For Charge 2, I adopt a starting point of 3 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 2 months.

23.  Although they may appear to have arisen from the same transaction, Charges 1 and 2, in my view, are separate and distinct.  Had the defendant been cooperative with the Police, Charge 2 could have been completely avoided.  I accept that by submitting himself to the Impairment Test, it might well have resulted in the defendant being prosecuted for another offence.  But that is an entirely different matter; I need not speculate any further.  In the circumstances, and having considered the totality principle, I order 1 month in Charge 2 to run consecutive to Charge 1.  In other words, the total prison term for both charges is 53 months.

24.  For Charge 2, I shall make a disqualification order of 7 years, which begins to take effect from today.[5]  I also order the defendant to complete a Driving Improvement Course at his own cost, for which he shall do so within the last 3 months of his disqualification period.[6]