HKSAR v. WONG HO WAN

HCCC 222/2024

[2025] HKCFI 747

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 222 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of conspiracy to trafficking in dangerous drugs[1] before Magistrate Ms. Vivian Ho and was committed, on 11 July 2024, to the Court of First Instance for sentence.

2.  Particulars of the charge are that the defendant, between 6 November 2022 and 6 January 2023, both dates inclusive, in Hong Kong, conspired together with other persons unknown, to unlawfully traffic in dangerous drugs, namely, cocaine and ketamine.

3.  The defendant confirmed his plea and admission of the summary of facts before me and his conviction was duly recorded.  The prosecution’s application to keep the remaining charge of trafficking in dangerous drugs on file was granted.

SUMMARY OF FACTS

4.  The defendant was seen approaching Room 1121, Shek Ning House, Shek Lei (I)  Estate, 22 Lei Pui Street, Kwai Chung, at 6:50pm on 6 January 2023.  Police officers on anti-narcotics operation there intercepted him when he had opened the iron gate and wooden door of the flat.

5.  Room 1121 was a 300 square feet apartment with a kitchen, bathroom and two beds in the living room.  There were no bedrooms.  A search warrant against Room 1121 was executed.

6.  Two keys, one mobile and one wallet containing cash of HK$13,150 were seized from the defendant.

7.  The following items were found on a table in the living room: 106 plastic bags and 1 plastic tray containing a total of 44.02 grammes of a solid containing 37.77 grammes of cocaine (being of 85.8% purity), 16 plastic bags containing a total of 261.09 grammes of a solid containing 180.52 grammes of ketamine (being of 69.1% purity), and packing paraphernalia such as digital scales, scissors, containers, numerous unused re-sealable bags were seized.

8.  The defendant was arrested for trafficking in dangerous drugs.  He claimed under caution that he possessed and trafficked in the drugs found because he had no money.  

9.  In the subsequent video recorded interview, the defendant claimed that he owned all the drugs in the room and he intended to sell them.  He owed some people around $36,000 for losing their dangerous drugs in previous drug trades.  It was a friend of his who told him to sell dangerous drugs to make money to repay his debt.  The defendant claimed he has no means to contact that friend.  

10.  The defendant said he would use the digital scales to weigh the drugs and the scissors to cut open the packages of drugs and then repack them for sale.  He had paid about $14,000 for the cocaine found in the room that day.  He would receive cocaine from an unknown person once every 3 or 4 days.  That unknown person would call him.  The defendant would then pay cash and pick up the cocaine from that unknown person at a taxi stand in Shek Lei (I)  Estate.

11.  In relation to the ketamine found in the room, the defendant claimed that someone had given them to him for free to sell.

12.  After he got the drugs, the defendant would re-pack them into smaller packets.  For every 24g of cocaine he would need to ‘cut and squeeze’ them into 75 packets of about 0.3g[2] cocaine each, which will then be sold for $500 per packet.

13.  As for the ketamine, he would re-pack them into 0.6g packets and sell them for $700 each.

14.  The defendant claimed to have been selling the dangerous drugs for about 2 months at the taxi stand in Shek Lei (I)  Estate.  The buyers would pay him in cash.  He had earned about $11,000 and had spent the money over Christmas.

15.  The defendant claimed that although he lived with his mother at Room 1121, she knew nothing about his drug dealing activities.

16.  The street value of all the dangerous drugs seized was $154,674.

17.  By his admission to the summary of facts, the defendant had admitted that he had conspired with other persons unknown to traffic in cocaine and ketamine at the material time period.  

PREVIOUS CONVICTION

18.  The defendant is of previously clear record as at the time of his commission of the offence.

BACKGROUND AND MITIGATION

19.  The defendant was born in mainland China in May 2004 and is 20 years old.  He came to Hong Kong with his parents in 2016, and received education here up to Form 2, when he quit and began working as a warehouse keeper earning about $13,000 per month.  His parents divorced in 2007.  The defendant lived at Room 1121 with his mother.  He has a 4-year old daughter who is being raised by his ex-girlfriend the mother.  

20.  Mr. Ching, counsel for the defendant, confirmed the contents of the defendant’s antecedent statement and had no further information to add.

21.  The defendant’s mother wrote in mitigation, telling the court that the defendant had always been a cheerful and lively child, full of passion for life, and he had won many awards while at school.  The defendant was naïve and led astray, committing the present crime, he is now deeply remorseful, ready to accept his punishment, hoping to turn a new leaf, and wishes him to be dealt with leniently.

SENTENCING

22.  The maximum sentence on conviction upon indictment for the present offence is the same as that of trafficking in dangerous drugs, which is life imprisonment and a fine of $5 million.

23.  The sentencing tariffs and guidelines for trafficking in cocaine and ketamine laid down in the cases of Lau Tak Ming[3], Hii Siew-cheng, as well as the sentencing approach for trafficking in dangerous drugs cases in Herry Jane Yusuph are applicable in a conspiracy to traffic charge with the required adaptations.

24.  In the case of HKSAR v Chan Kam Loi (陳鑑來) CACC 410/2012, the Court of Appeal provided the following guidance in sentencing conspiring to traffic in dangerous drugs cases.  

“100. ...But, in respect of inchoate offences it may not be possible to assess precisely the amount of drugs that were, or were going to be, trafficked. This does not mean that the Court is absolved from reaching a view on the gravity of the offence, merely that it does not have the advantage of doing so in the usual way. Of course, quantity is not the only fact relevant to the assessment of gravity but it has provided the courts with a ready means of identifying an appropriate starting point which can then be enhanced should there be present aggravating factors which increase the gravity of the offence.

101. Thus, even in respect of inchoate offences, the natural course is for the Court to analyse evidence to see whether it allows the Court to reach a conclusion which fairly reflects the quantity of drugs that were trafficked or were agreed to be trafficked.

102. The evidence may not always allow of precise quantification but it may be possible to reach a view of the very least that was trafficked by recourse to inferences drawn from the evidence or assumptions based on the evidence. Such a course is permissible as long as the inferences and assumptions are based upon evidence and do not become mere speculation with no evidential foundation. Whether the evidence and the inferences that are drawn from it enable the Court to have recourse to the quantity based sentencing bands will inevitably vary from case to case. But sight should not be lost of the ultimate goal which is to make an accurate assessment of the gravity of the offence so as to enable the Court to impose a just sentence.”

25.  In the present case, the charge period is 62 days.  The defendant said under caution that he had been ‘selling dangerous drugs for about 2 months’, receiving about $500 for each transaction, and had made about $11,000.  Dividing $11,000 by $500 would suggest he had sold drugs on at least 22 occasions in the 2 month period before his arrest.  

26.  In relation to cocaine, the defendant claimed that he ‘received cocaine once every 3 to 4 days’, meaning that in the 62 days charge period, he would have received cocaine on around 20 to 15 occasions.

27.  Taking the approach most favourable to the defendant, assuming he received cocaine on 15 occasions, and assuming the 37.77g of cocaine (from 44.02g of a solid)  found in Room 1121 on the day was the quantity he would receive on each occasion, the defendant had conspired to traffic in at least (37.77g x 15=)  566.55g of cocaine.

28.  In relation to the ketamine, the defendant did not say and it is not clear how much ketamine he had ‘received’ from ‘someone’, and how often.  Without further evidence, the most favorable version of fact would be that the ketamine seized in Room 1121 on the day was the only batch of ketamine he had received.  The defendant would, therefore, have had conspired to traffic in at least 180.52g (from 261.09g of a solid)  of ketamine.

29.  Proceeding on the factual basis that is most in favour of the defendant, that is to say, that he had conspired to traffic in 566.55g of cocaine and 180.52g of ketamine, and adopting the combined approach in HKSAR v Yip Wai Yin[4], the following tests are conducted to ensure that the sentence under such an approach is proper.

ABSURDITY TEST

30.  If all 747.07g were the more potent drug of cocaine, the notional starting point would be 20 years 9 months.

CONVERSION TEST

31.  The starting points for 566.55g of cocaine and 180.52g of ketamine are, respectively, 19 years 2 months and 7 years 7 months.

32.  Taking cocaine as the base drug, 44g of cocaine would attract a sentence of 7 years 7 months.  If this converted 44g is added to the original 566.55g of cocaine, the notional sentence for the converted total of 610.55g of cocaine becomes 20 years 1 month.

RATIO TEST

33.  Based on the proportion of the 2 different drugs, the sentence should approximately be 18 years 10 months.

34.  Bearing in mind that the defendant is being sentenced for conspiring to traffic, I would use 20 years 1 month imprisonment as a reference point.

35.  By his own admission under caution, the defendant was not only a storekeeper for the drugs.  He was also a courier as well as a direct trafficker, adding to his culpability in the conspiracy.  The conspiracy lasted some 62 days, during which time the defendant received, repacked and sold drugs on multiple occasions.  

36.  For the defendant’s role and culpability in the conspiracy to traffic, bearing in mind the likely quantity of drugs trafficked and to be trafficked, I will adopt a notional starting point of 21 years’ imprisonment.  

AGGRAVATING FACTOR

37.  It is trite law that trafficking in more than one type of dangerous drugs is an aggravating factor.  Any conspiracy to traffic in more than one type of drugs must by extension also an aggravating factor.  Given the large quantity of drugs involved, I will enhance the said starting point by 9 months, taking it up to 21 years 9 months’ imprisonment.  

MITIGATING FACTOR

38.  The only mitigating factor is the defendant’s timely plea, for which he is granted the full one-third discount.

TOTALITY

39.  Taking a step back, I find the resulting sentence of 14 years 6 months’ imprisonment after plea a fair, just and balanced sentence in the circumstances.