HKSAR v. WONG SAI MAN, SIMON AND ANOTHER

DCCC 469/2023

[2024] HKDC 1884

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 469 OF 2023

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REASONS FOR SENTENCE

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D1 faces 2 charges of "drug trafficking" (Charges 1 and 4)  and one charge of "Assaulting a police officer in the execution of his duty" (Charge 3). D2 faces one charge of "simple possession" (Charge 2).

2.  D1 pleaded guilty to Charges 1 and 4.  D2 pleaded guilty to Charge 2.  I granted the prosecution's application to leave Charge 3 against D1 in the court file; not to be proceeded against him without leave of court.

Summary of Facts

Charges 1 and 2

3.  About 4:30 p.m. on 1 December 2022, PC 27345 (PW1), PC 26742 (PW2)  and Sgt 8903 (PW3)  were on duty in plain clothes outside The Apex, No.33 Wo Yi Hop Road, Kwai Chung ("Location 1").

4.  PW1 saw D2, who was holding a $500 banknote in his left hand, walking towards a private car YB4621 ("the Car")  parked near lamppost BC1410.  D2 opened the door of the front passenger seat and exchanged some items with the driver (later identified as D1).  After D2 closed the door, he was holding a piece of folded facial tissue in his left hand.  He unwrapped the facial tissue whilst walking towards the Apex.

5.  PW1 intercepted D2 for enquiry, but D2 struggled and attempted to flee.  As he was running away, D2 threw away the facial tissue, from which 2 transparent resealable plastic bags (collectively E1)  fell on the ground.  E1 was subsequently found to contain a total of 1.34 grammes of a solid containing 1.16 grammes of ketamine.

6.  PW1 and PW2 subdued D2 and handcuffed him.  PW1 arrested D2 for "trafficking". Under caution, D2 said he bought the "K chai" for self-consumption and asked for a chance.  Upon search, nothing illegal was found on D2.  In his Record of Interview, D2 admitted that "K Chai" meant ketamine.  He bought E1at $600 for self-consumption.  He threw away E1 (which was wrapped in a piece of facial tissue)  because he was scared.

7.  At the same time, PW3 approached the Car and requested D1 to alight from it.  D1 did not comply with the request, so PW3 attempted to subdue D1 by pointing his baton through the driver's seat window.  D1 immediately closed the window and drove the Car away.  PW3 boarded a minibus and asked the driver to follow the Car.  PW3 lost sight of the Car outside Lai Chi Kok Reception Centre.

Charge 4

8.  In the morning on 5 December 2022, PC 11663 (PW4)  and PC 13856 (PW5)  were in plain clothes patrolling in Tsim Sha Tsui.  Around 10:00 a.m. on the same day, they were informed that the Car was parked outside Hart Avenue Court, Nos.19-23 Hart Avenue.  PWs 4 and 5 soon located the Car.  They laid ambush nearby.  About 11:50 in the same morning, D1 approached the Car and opened the driver's seat door.  PW4 immediately intercepted him.  Upon enquiry, D1 claimed that he started renting the Car in November 2022.  After being told that the Car was involved in a drug trafficking case, D1 ran away.  Both police officers gave chase and apprehended D1. 

9.  Upon search, PW5 found, inter alia, a key to the Car on D1.  PW4 arrested D1 for "trafficking" in relation to the incident on 1 December 2022. Under caution, D1 admitted that he drove the Car to Location 1 to sell dangerous drugs to that man (i.e. D2)  on that day.  PW5 then searched the Car in D1's presence and found the following items in the storage compartment between the driver's seat and the front passenger seat :-

(a)  a black plastic box containing:

(i)  16 plastic bags which contained a total of 10.5 grammes of a solid containing 9.15 grammes of ketamine (collectively E2);

(ii)  18 plastic bags which contained a total of 11.9 grammes of a solid containing 10.3 grammes of ketamine (collectively E3);

(iii)  3 plastic bags which contained a total of 1.94 grammes of a solid containing 1.68 grammes of ketamine (collectively E4);

(b)  a pink metal box containing:

(iv)  16 plastic bags which contained a total of 2.46 grammes of a solid containing 1.52 grammes of cocaine (collectively E5);

(v)  13 plastic bags which contained a total of 1.97 grammes of a solid containing 1.73 grammes of cocaine (collectively E6);

(c)  a grey plastic box containing:

(vi)  11 plastic bags which contained a total of 7.32 grammes of a solid containing 6.11 grammes of ketamine (collectively E7);

(vii)  42 plastic bags which contained a total of 27.9 grammes of a solid containing 24.0 grammes of ketamine (collectively E8);

(viii)  1 plastic bag which contained 0.71 gramme of a solid containing 0.61 gramme of ketamine (collectively E9); and

(d)  a grey metal box containing:

(xi)  29 plastic bags which contained a total of 4.65 grammes of a solid containing 3.64 grammes of cocaine (collectively E10).

10.  The total estimated street value of E1 was $778.54; whereas E2 to E10, $42,589.19.

11.  PW4 arrested D1 for "trafficking" in relation to the dangerous drugs found in the Car. Under caution, D1 admitted that he intended to sell E2 to E10 to others.

12.  In an identification parade conducted on 15 December 2022, PW3 identified D1 as the driver of the Car (on 1 December 2022).

13.  Mr. Kwok, a staff member of EV Rental Hong Kong Limited, confirmed that the Car was rented to D1 from 27 September 2022 to 26 September 2023.

14.  Car camera footage of the minibus which PW3 boarded captured D2 being subdued by PWs 1 and 2; PW3 rushing towards the Car; the Car being driven away; and PW3 boarding the minibus and asking the driver to follow the Car.

Mitigation

D1

15.  He is 44 and single.  He has 2 conviction records, which involved a total of 11 offences related to dishonesty.  His counsel Mr. Ng informed me that D1 holds a Higher Diploma in Translation.  Prior to the pandemic, he was a warehouse supervisor.  In mitigation, Mr. Ng submitted that D1 lost his job owing to the pandemic.  He foolishly believed that he could earn some quick money by trafficking in dangerous drugs.  He is truly remorseful.  Since D1's arrest, his mother (aged 74)  now needs to work as a cleaner to support herself.

D2

16.  He recently turned 36 and is single.  He has 2 conviction records, which included 2 "simple possession" offences and 1 violence-related offence.  His counsel Ms. Zahir informed me that D2 started working for Town Gas in 2007 and was a registered gas installer.  His last licence was issued in May 2021.  He lost his job during the pandemic.  In mitigation, Ms. Zahir submitted that the divorce of D2's parents (when he was about 11 years old)  affected him deeply. He picked up his drug habit around that time due to influence of undesirable peers.  Ms. Zahir stressed that D2 has been seeking professional help in various aspects (including counselling, referral for psychiatry and rehabilitative family course).  Both D2's mother and elder brother are supportive.

Sentence

17.  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.

18.  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 up to 10 grammes of ketamine, the sentence ranges from 2 to 4 years' imprisonment.  For 50 to 300 grammes of ketamine, the sentence ranges from 6 to 9 years' imprisonment.  For up to 10 grammes of cocaine, it ranges from 2 to 5 years' imprisonment.

D1

19.  In Charge 1, D1 sold 1.16 grammes of ketamine to D2.  Applying a strict arithmetical approach, the appropriate starting point is 2 years' imprisonment.  With the timely guilty plea, the sentence is reduced to 16 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence D1 to 16 months' imprisonment for this charge.

20.  Regarding 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 Charge 4, D1 trafficked in a cocktail of drugs consisting of 51.85 grammes of ketamine and 6.89 grammes of cocaine.  For 51.85 grammes of ketamine, applying a strict arithmetical approach, the appropriate starting point is 6 years' imprisonment.  Similarly, for 6.89 grammes of cocaine, 49 months.  In my view, the "combined approach" would arrive at a realistic and fair sentence. 

21.  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 6 years' imprisonment and adjust it upward by 9 months for the cocaine, arriving at 81 months.  With the timely guilty plea, the sentence is reduced to 54 months.  I sentence D1 to 54 months' imprisonment for Charge 4.

22.  I accept it is a possibility that had D1 not fled from Location 1, he could have been charged with trafficking in E1 and whatever he had with him or in the Car on 1 December 2022.  In other words, even though D1 would still possibly face 2 "trafficking" charges, he could have been benefited from the one-transaction rule for sentencing.  On the other hand, I now cannot ignore the fact that Charges 1 and 4 are separate and distinct.

23.  Bearing in mind the totality principle, I consider an overall sentence of 62 months appropriate for both charges (after plea).  I am aware of the "assistance to authority" issue raised by Mr. Ng.  The Police, however, considered that the information provided by D1 was of no practical use.  I am prepared to grant a nominal discount of 2 months to reflect D1's willingness to assist the Police, reducing the overall sentence to 60 months.  Hence, I order 6 months in Charge 1 to run consecutive to the sentence for Charge 4, arriving at a total prison term of 60 months.

D2

24.  In Charge 2, he purchased a total of 1.16 grammes of ketamine (packaged in 2 transparent resealable plastic bags)  from D1.  DATC Report indicated that he is not a drug dependant and thus not suitable for admission.  I accept that D2 purchased E1 for self-consumption and need not be concerned with any latent risk of trafficking.  I adopt a starting point of 6 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 4 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence D2 to 4 months' imprisonment for this charge.