HKSAR v. WONG CHUN HANG ERIC

DCCC 852/2023

[2024] HKDC 1382

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 852 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of trafficking in dangerous drugs on the first day of trial and he admitted the summary of facts.

The Facts

2.  At 0430 hours on 2 April 2023, a team of police officer was conducting an anti-crime patrol outside 416 King’s Road, North Point.  The defendant was acting suspiciously.  In a search carried out by the police of D’s sling bag found the following:

(i)  15 plastic bags containing a total of 4.88 grammes of a solid containing 4.09 grammes of cocaine;

(ii)  4 plastic bags containing a total of 1.93 grammes of a solid containing 0.73 grammes of ketamine.

3.  The defendant was arrested at scene and under caution, he said that all the drugs was for his own consumption.

4.  In the subsequent cautioned interview, the defendant stated that he knew the nature of the drugs being cocaine and ketamine.  He bought them from an unknown person at a park in Mongkok with $5,000 around 2 to 3 weeks ago, but he forgot the exact time and date.  The drugs were packed into separate packages when he bought them.

5.  The total estimated street value of all the dangerous drugs seized was $4,859 at the material time.

Defendant’s Background

6.  The defendant is 62 years of age.  He is not a first-time offender.  On two previous occasions, he had been convicted of three charges involving one charge of assaulting police and two charges of AOABH in 1987 and 1990 and was sentenced to fine.

7.  The defendant had worked as a taxi driver.  He was living with his sick, elderly mother.  As a result, the defendant suffered from depression and stress.  He started taking ketamine and cocaine to alleviate his emotional situation.   The defendant claimed that out of 19 bags of the drugs, 4 of which would have been used by him for self-consumption.

Sentence

8.  The drugs involved are 4.09 grammes of cocaine and 0.73 grammes of ketamine.

9.  The sentencing guidelines laid down in:-

(i)  R v Lau Tak Ming & Another [1990] 2 HKLRD 370 and AG v Pedro Nel Rojas [1994] 2 HKCLR 69, the sentence for trafficking up to 10 g of cocaine is 2 to 5 years. The starting point for trafficking the cocaine is almost 39 months; and

(ii)  SJ v Hii Siew-cheng [2009] 1 HKLRD 1, the sentence for trafficking in ketamine up to a gramme is at the court’s discretion. The starting point for trafficking the ketamine is therefore 17 months.

10.  I work through the three tests stated in the case of HKSAR v Chan Yuk Leong, CACC 318/2013, for cross-checking what starting point is appropriate, as follows:

(i)  the absurdity test is almost 41 months’ imprisonment;

(ii)  the conversion test based on the cocaine sentencing guidelines is almost 39 months, and based on the ketamine sentencing guidelines is 40 months; and

(iii)  the ratio test is 40 months.

11.  On the above basis, I note that cocaine is more potent and in greater quantity.  I consider that combined approach would yield a fairer sentence. The appropriate starting point is 39 months’ imprisonment.

12.  In HKSAR v Kong Tat Lung CACC 27/2016 ( paragraph 58), it was said that the Court of Appeal does not say that, in drug-trafficking case, once the defendant had intended to use part of the drugs in question for self-use, albeit such small quantity, the defendant should be entitled to 10 to 25 per cent sentencing discount.  The recommendation for sentencing discount by the Court of Appeal is only applicable in cases where the defendant has significant part of the drugs for self-consumption.

13.  The defendant did not give evidence to support his allegation that a substantial part of the drug were for his consumption.  What he is relying is the mere allegation he made during the interview with the police.

14.  Given what the defendant told the police under caution that he bought the drugs 2 to 3 weeks ago.  I have great reservation why he would still have the drugs with him on the day he was stopped and searched by the police in the street. He should have kept the drugs at home after he had bought them.  However I shall still exercise my discretion and give him an extra 1.5 months discount.

15.  Having considered the whole of the relevant circumstances, I cannot find any other mitigating factors of weight to justify a further reduction in sentence.  With the aforesaid discount, the sentence will be reduced to one of 37.5 months’ imprisonment (39 - 1.5).

16.  The defendant pleaded guilty on the first day of the trial. He is entitled to a one-fifth discount: Ngo Van Nam CACC 418/2014 (paragraph 233).

17.  The sentence is therefore 30 months’ imprisonment.