HKSAR v. CHUNG KI FUNG

DCCC 534/2022

[2023] HKDC 1498

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 534 OF 2022

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REASONS FOR SENTENCE

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1.  D1 Mr Chung (hereinafter “D1”)  pleaded guilty before me to one charge (Charge 1)  of Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. Particulars are that he, together with Sze Wai Laam (previously D2 and hereinafter “Sze”), on 8 December 2021, on a private car bearing registration mark WL1930, outside No 304 Reclamation Street, Yau Ma Tei, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 10.81 grammes of a solid containing 10.02 grammes of cocaine and 29.1 grammes of a solid containing 24.6 grammes of ketamine.

2.  D1 pleaded not guilty before me to Charge 2 of Possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134; and Charge 3 of Possession of a poison included in Part 1 of the Poisons List, contrary to sections 23(1), 33(1)  and 34 of the Pharmacy and Poisons Ordinance, Cap 138.  Both of these charges were laid against D1 only.

3.  Prosecution asked that Charges 2 and 3 be left on court file not to be proceeded with without the leave of this court or the Court of Appeal.  I so ordered.

4.  D1 offered to give evidence against Sze.  He appeared as PW1 in the trial of Sze.  At the end of the trial, I found D1’s evidence useless.  Sze was acquitted as a result.

Facts admitted by D1

5.  On 8 December 2021, at about 1947 hours, a private car WL1930 was parked outside No 304 Reclamation Street, Yau Ma Tei.  D1 was in the driver’s seat. Sze was in the front passenger seat.

6.  Police found the duo suspicious and requested them to alight.

7.  Thereafter, a search was conducted of the car.

8.  Near the driver’s seat were found:-

(a)  At the dashboard area: 2 mobile phones;

(b)  In the door compartment: 2 other mobile phones;

(c)  In the compartment between the driver’s seat and the front passenger seat: cash of HK$51,090 and RMB400 which was connected with drug trafficking.

9.  On the carpet at the front passenger seat were found a black pouch containing:-

(a)  One transparent resealable plastic bag with marking (“20粉 (meaning powder)”)  containing 6 transparent resealable plastic bags of a total of 0.99 g of a solid containing 0.89 g of cocaine (“E1”);

(b)  One transparent resealable plastic bag with marking (“40粉 (meaning powder)”)  containing 18 transparent resealable plastic bags of a total of 12.4g of a solid containing 10.5g of ketamine (“E2”);

(c)  One transparent resealable plastic bag with marking “40石 (meaning stone)”)  containing 24 transparent resealable plastic bags of a total of 16.7g of a solid containing 14.1g of ketamine (“E3”);

(d)  One transparent resealable plastic bag with marking (“20粉 (meaning powder)”)  containing 60 transparent resealable plastic bags of a total of 9.82g of a solid containing 9.13g of cocaine (“E4”);

(e)  One transparent resealable plastic bag with marking “哈transliteration “Ha”)”;

(f)  One transparent resealable plastic bag with marking “40”;

(g)  One transparent resealable plastic bag with marking “40石 (meaning stone)”; and

(h)  One transparent resealable plastic bag with marking “30粉 (meaning powder)”.

10.  D1 was the registered owner of the car.

11.  D1 now admits that at all material times, he and Sze were in possession of E1 to E4 for the purpose of unlawful trafficking.

Criminal record

12.  D1 has a clear record.

Antecedents

13.  D1 is aged 31 (almost 30 at the time of the offence), educated to diploma level, worked as a driver.  He is single and resided with his parents and younger sister in Hung Shui Kiu, Tuen Mun.

Mitigation

14.  Mr Robert Chan of counsel[1] mitigated on behalf of D1.  The following is a summary of the mitigation submissions.

15.  The family and friends of D1 are in court to give their support.

16.  D1 was working as a driver earning $30,000 a month.  Between September 2012 and September 2013, D1 studied full-time for a Diploma in Hotel Management.  He is not a drug abuser.  He has a clear record.

17.  The drugs in question were brought into D1’s car by Sze.  As agreed with Sze, D1 drove to various locations for Sze to distribute the drugs to their intended recipients; Sze would take the payment for the same.  Sze promised to give D1 half of the money he received for the drugs.

18.  Although D1 did not know the street value of the drugs at the material time, he would agree to the valuation made by the Narcotics Bureau for the prosecution: $11,696 (for E1 and E4 – cocaine powder)  and $16,238 (for E2 and E3 – ketamine).

19.  The court is invited to sentence D1 as a courier of drugs: HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, at para 59.

20.  The starting point for trafficking in 10.02 grammes of cocaine would be in the region of 5 years: R v Lau Tak Ming [1991] 2 HKLR 370 and Attorney General v Pedro Nel Rojas [1994] 1 HKC 342.

21.  The starting point for trafficking in 24.6 grammes of ketamine would be in the region of 57 months: Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 and HKSAR v Sin Chung Kin [2013] 1 HKLRD 622, at para 22.

22.  Individual approach of sentencing would give a figure of 117 months, which would be excessive.

23.  It is submitted that the combined approach of sentencing should be adopted; that the methodology in HKSAR v Islam SM Majharul [2020] 3 HKLRD 146 should be followed in order to arrive at a reasonable and realistic starting point.  In this regard, the results of the various applicable tests are as follows:-

(a)  Absurdity test: for 34.62 grammes of cocaine, 82 months; for 34.62 grammes of ketamine, 62 months;

(b)  Conversion test: for 19.02 grammes of cocaine, 68 months; for about 54 grammes of ketamine, 72 months; and

(c)  Ratio test: the starting point for ratio of ketamine in total weight of drugs + the starting point for ratio of cocaine in total weight of drugs = 68 months.

24.  In light of these results, the court is asked to consider adopting a starting point of 68 months.  The court may consider an enhancement on the basis that D1 acted jointly with Sze and that two types of drug are involved. If so, the court is asked not to increase the starting point by more than 3 months.

25.  Mr Chan submitted on behalf of D1 a total of 9 mitigation letters (in Chinese)  written by respectively D1 himself, his mother, father, younger sister, aunt, uncle, a long-time friend, a friend, and a pastor.  The contents generally are that D1 was lured into committing the offence; he promises not to re-offend; he is remorseful and regretful; that he is simple-minded, acts impulsively without thinking of consequences, and believes others easily; that he behaves well under remand.  The letter writers asked for a lenient sentence on behalf of D1 so he may re-unite with his family early and start afresh.

26.  As regards D1’s purported assistance to the prosecution regarding testifying against Sze which did not bear fruit, Mr Chan referred to HKSAR v Lo Sze Tung Stephanie [2019] 1 HKC 309, at paras 48-51, and nonetheless asked the court to exercise its discretion to give some, if only slight, additional discount to D1 on top of the 1/3 for pleading guilty.

Sentence

27.  I have had regard to the 6-step approach identified in HKSAR v Herry Jane Yusuph (supra).

28.  I am satisfied that D1 was simply a courier.

29.  I have come to the conclusion that D1’s testimony was useless against Sze in the trial of the latter.  What is more, D1 has departed substantially from his witness statement (NPS)  regarding the role played by Sze in the trafficking activity.  I have considered Mr Chan’s submissions on whether I should nonetheless exercise my discretion to give D1 some slight additional discount for unsuccessfully testifying against Sze.  Seeing it first-hand as the trial judge, I still do not understand why D1 retracted somewhat from the position he adopted when he gave the NPS about the role played by Sze.  This has had a direct consequence on the verdict returned to Sze.  I refuse to give any additional sentencing discount to D1.

30.  The calculations made by Mr Chan regarding various tests under the combined approach more or less coincide with my own.

31.  I have had regard to the 7-step approach identified in HKSAR v Islam SM Majharul (supra) for sentencing in a case involving a cocktail of drugs.

32.  I would respectfully adopt the suggestion of Mr Chan and adopt 68 months as the overall starting point before consideration of aggravating factors.

33.  For the dual aggravating factors that the trafficking involved two serious dangerous drugs, and the trafficking activity was conducted with Sze (by D1’s own admission against interests), that starting point is enhanced by 4 months.

34.  D1 pleaded guilty to the charge.  He shall be entitled to the full 1/3 discount.  That would reduce the sentence to 48 months.  I do not see any other valid mitigating factors that could act to cut down the sentence further.  For the record, D1’s previous clear record counts for little in this type of serious crime.

35.  Stepping back, and looking at that sentence afresh in light of the role played by D1 in the company of Sze, the use of a vehicle in the trafficking of two types of serious dangerous drug, and the total number of plastic bags involved, I conclude that the sentence of 48 months’ imprisonment after plea, though not a light sentence by any standards, is not unfairly or unjustly crushing or oppressive.

(D1, please stand)

36.  The sentence for D1 on Charge 1 is 48 months’ imprisonment.

                                                                            District Judge