HKSAR v. WONG CHEONG SHING

HCCC 464/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 464 OF 2016

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REASONS FOR SENTENCE

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Charge

1.  The defendant, Wong Cheong Shing, faced one count of Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

Summary of facts

2.  On 1 April 2016, the defendant hailed a taxi in Wanchai and instructed the driver to go to the Aberdeen Fish Market.  Upon arrival, the defendant asked the driver to wait.  After 5 minutes, the defendant told the driver to drive to the Port Centre and to wait for the defendant there, the defendant having told the driver that he would have to go to Tai Kok Tsui, Tsuen Wan and Tin Shui Wai.  The defendant paid the fare and alighted.  He went into the Aberdeen Centre, which was opposite to the Port Centre, and he met up with an unknown man who was carrying a bag.  The two went inside a toilet for the disabled and when the defendant emerged, he was carrying the plastic bag previously held by the unknown man.  The defendant walked back to the taxi alone and got inside.  At this stage, police officers who were laying ambush there intercepted the taxi.  The defendant put up a brief struggle but was subdued.  The plastic bag carried by the defendant was searched.  A total of 16 small plastic bags containing what was later confirmed to be 4,002 grammes of a powder containing 2,842 grammes of ketamine, with a street value around $540,270.  

3.  The defendant admitted he possessed the ketamine for the purpose of trafficking.

Background

4.  The defendant is a 19-year-old single man.  He has no previous convictions.  He was educated up to Form 6 level and had worked as a delivery worker after leaving school. 

5.  Ms Tsang, in mitigation, gave me a detailed background of the defendant and why he had committed the present offence.  In short, the defendant’s parents divorced in 2014 and his mother became the sole breadwinner.  The defendant’s academic result in Form 5 (as shown by his school report) was good and he had no problem with his conduct.  The defendant started to do a part-time job to supplement the family income when he was studying Form 6.  As his academic result fell below his former good standard, he accepted the advice of his teacher not to sit for the exam.  He became idle and mixed with the wrong elements.  As he was in financial difficulties and he wanted to repay a loan of $4,000 to his girlfriend who was in need of money, he agreed to traffic the dangerous drug for someone called Fat Lok for a reward of $1,000 – to make up the shortfall as he had $3,000 available at the time.  He did not know the weight of the dangerous drug nor the seriousness of the offence as he himself was not a drug addict.

6.  The defendant, his mother and sister, his father, his girlfriend and his former classmate all wrote to me, asking for leniency.  Information gathered from these letters show that basically the defendant is not a bad person.  He is a filial son who cares deeply for his family.  He is also a caring person to his friends.  He committed the present offence due to the influence of bad elements and he is truly remorseful, promising to turn a new leaf and be a useful member of the society when he is released. 

7.  Ms Tsang also tendered a number of certificates, showing that the defendant had participated in community service before.

8.  As to the appropriate starting point, Ms Tsang referred me to the case of HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1, in which the Court of Appeal laid down the guidelines that trafficking over 1,000 grammes of ketamine, the starting point is from 14 years upwards.  She then referred me to the case of HKSAR v Sin Chung Kin [2013] 1 HKLRD 622 and submitted that the Court of Appeal only considered AG v Ching Kwok Hung [1991] 2 HKLR 125 and R v Lau Tak Ming [1990] 2 HKLR 370 when making a comparison between the trafficking a large amount of ketamine with the trafficking of a large amount of “ice” and heroin, resulting in the Court of Appeal’s view that trafficking 2,000-3,000 grammes of ketamine, the starting point should not be less than 18 and 20 years respectively.  Ms Tsang submitted that having regard to the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and HKSAR v Abdallah [2009] 2 HKLRD 437, and in particular the case of Tam Yi Chun, trafficking 3,000 grammes of ketamine should attract a starting point between 14.7 and 19.6 years.

9.  How did Ms Tsang arrive at those figures?  She used the same band of between 300-600 grammes of narcotics and compared the difference in sentence: for ketamine in Hii Siew Cheng (9-12 years); for “ice” in Tam Yi Chun (15-20 years).  The sentence for ketamine (9 years) equals to 60% of the sentence for “ice” (15 years).  Again, using the band of 600-1,000 grammes of ketamine in Hii Siew Cheng (12-14 years) and compared with the band of 600-1,200 grammes of “ice” in Tam Yi Chun (20-23 years), again the sentence for ketamine (12 years) equals to 60% of the sentence for “ice” (20 years).  Ms Tsang called this the “60% formula”.

10.  Ms Tsang submitted that in Sin Chung Kin, the Court of Appeal did not have the benefit of the case Tam Yi Chun, a 20 years sentence for trafficking 3,000 grammes of ketamine (20 years) would be equivalent to 80% of the sentence for trafficking the same amount of “ice” (25 years).

11.  Ms Tsang further submitted that the trafficking of 2,842 grammes of “ice” would attract a starting point of around 24.4 years.  If one adopts the 60% formula, the starting point would be 14.7 years. If one adopts the 80% approach, the starting point would be 19.6 years. That is how she arrived at the range of 14.7 years and 19.6 years.

12.  Realizing that adopting a starting point of 14.7 years (ie the 60% formula) for trafficking 2.8 kg of ketamine, when compared with a 14 years starting point for someone trafficking 1 kg of ketamine, the former could not be said to be of “a meaningful distinction” from the latter, Ms Tsang ventured to suggest a midway approach, asking this court to adopt a “70% formula”, resulting in a starting point of 17 years.

13.  Mr Lenny Cheng, counsel for the prosecution, opposed to this approach suggested by Ms Tsang.  He placed emphasis that the sentencing should not be on a purely mathematical basis.  He submitted that in Sin Chung Kin, when the Court of Appeal considered Hii Siew Cheng with Ching Kwok Hung, for the same band (300-600 grammes), the difference between the two (9-12 years in Hii Siew Cheng and 14-18 years in Ching Kwok Hung) would produce a similar effect to the 60% formula as suggested by defence counsel: 9 years equals to 64% of 14 years, and 12 years equals to 67% of 18 years.  Yet, the Court of Appeal still came up with a 80% formula, which shows that the Court of Appeal never adopted a mathematical approach.

14.  Further, relying on the case of HKSAR v Chow Yau Ching [2014] 2 HKLRD 639 (which approved a starting point of 19 years and 9 months for 2,890 grammes of ketamine), Mr Cheng submitted that the approach suggested by the defence would not result in a meaningful distinction between a trafficker of a certain amount and another trafficker trafficking twice that amount.

Sentence

15.  Trafficking in a dangerous drug is a serious offence.  A person convicted of this offence on indictment is liable to a fine of $5 million and life imprisonment.

16.  In Hii Siew Cheng, the Court of Appeal set down guidelines for the trafficking of ketamine.  The ketamine involved here amounts to 2.842 kg, so it is within the band for over 1 kg with a starting point from 14 years upwards.

17.  There are no further guidelines regarding the trafficking of a large amount, over 1 kg, of ketamine, unlike in the case of heroin/cocaine (Abdallah) and “ice” (Tam Yi Chun).

18.  In Sin Chung Kin, Yeung VP, giving judgment of the Court, said, at paras 27 and 28 of the judgment:

“27. The longest sentence in the guidelines laid down in Hii Siew Cheng is 14 years’ imprisonment for trafficking in 1,000 g of ketamine. However, if one follows the rate of enhancement of sentences as is apparent from Lau Tak-ming and Ching Kwok-hung, then for trafficking in 2,000 g and 3,000 g of ketamine (which, respectively, doubles and triples the 1,000 g which attracts 14 years’ imprisonment), the appropriate starting points should respectively be no less than 18 years and 20 years.

28. Taking one step further, if more than 3,000 g of ketamine is involved, the starting point can exceed 20 years, although the increase in sentence should not be proportional to the increase in the drug quantity. The court should exercise its discretion to pass a sentence appropriate in the circumstances of the particular case.”

19.  In Chow Yau Ching, the Court of Appeal made it clear that Sin Chung Kin did not revise any sentencing guidelines, but rather, having considered the rates of enhancement of starting points for trafficking in large quantities of other dangerous drug, (such as heroin and “ice”), made the observation that the appropriate starting points for trafficking in 2,000 grammes and 3,000 grammes of ketamine should, respectively, be no less than 18 years and 20 years.  The Court of Appeal also endorsed the view (expressed in Abdallah) that there should be a meaningful distinction between the sentence for trafficking in a particular quantity of dangerous drug and trafficking in twice that quantity.  There should also be a distinction between the sentence where there were other aggravating factors and the sentence where there were none. 

20.  Whilst I fully appreciate the arguments advanced by Ms Tsang, and accepting that in Sin Chung Kin the Court of Appeal did not have the benefit of Tam Yi Chun, I accept the submission of Mr Cheng that the Court of Appeal in Sin Chung Kin had clearly not adopted a purely mathematical approach.  

21.  I am of the view that it is very important to have a meaningful distinction between the sentence for one trafficking a specified amount (say 1 kg) and another trafficking twice or three times the amount (say 2-3 kg).  This point was clearly emphasized in Chow Yau Ching, citing with approval the observation by the Court of Appeal in Abdallah.

22.  As readily accepted by Ms Tsang, adopting the 60% formula, a starting point of 14.7 years for trafficking almost 3 kg of ketamine, when compared with a starting point of 14 years for someone trafficking 1 kg, it could not possibly be said that the former sentence is of a meaningful distinction with the latter.

23.  I am of the view that trafficking 2 kg and 3 kg of ketamine, with a starting point of not less than 18 and 20 years as indicated in Sin Chung Kin, amounts to a meaningful distinction when compared to one trafficking 1 kg.

24.  The amount involved here is closer to 3 kg.  However, bearing in mind that sentencing is not based on a pure mathematical approach, having considered all the circumstances of the case, the defendant’s relatively young age and his clear record, I am of the view that a starting point of 18 years is appropriate here.

25.  The defendant pleaded guilty at the earliest available opportunity and I will give him the full 1/3 discount.  With this discount the sentence is one of 12 years.

26.  On the evidence placed before me, I accept that the defendant was of positive good character prior to the commission of this offence and I will give him a further discount of 3 months.

27.  For the offence of Trafficking in a dangerous drug, the defendant is sentenced to 11 years and 9 months’ imprisonment.