HKSAR v. WONG YU FONG

DCCC 1484/2024

[2025] HKDC 1826

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1484 OF 2024

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug" (Charge 1); a charge of "Driving a motor vehicle with any concentration of a specified illicit drug" (Charge 2); and a charge of "Driving without a valid driving licence" (Charge 3). The dangerous drugs involved in Charges 1 and 2 are cocaine and ketamine respectively.

Summary of Facts

Charge 1

2.  About 11:31 p.m. on 13 November 2022, upon seeing a private car YC6445 ("the Car")  turning erratically from Kwun Tong Road onto Fuk To Street, PC 14602 (PW1)  signalled for it to pull over.  The defendant was driving the Car.

3.  After the defendant had stopped the Car, PW1 searched him.  He found in the left front pocket of the defendant's shorts 2 resealable plastic bags which contained a total of 0.59 gramme of a solid containing 0.49 gramme of cocaine (collectively E1)  and 1 resealable plastic bag which contained 0.30 gramme of a solid containing 0.27 gramme of cocaine (E2).

4.  A few minutes later, PC 12418 searched the Car.  In the storage compartment of the driver's door, he found a cigarette box containing 1 resealable plastic bag which contained 0.29 gramme of a solid containing 0.25 gramme of cocaine (E3)  and 13 resealable plastic bags which contained a total of 3.99 grammes of a solid containing 3.65 grammes of cocaine (collectively E4).

Charges 2 and 3

5.  About 12:23 a.m. on 14 November 2022, the defendant took a Rapid Oral Fluid Test.  The result was ketamine positive.

6.  About 5:45 a.m. on the same day, a blood sample was taken from the defendant at Tseung Kwan O Hospital with his consent.  Analysis performed by Government Chemist revealed that his blood sample contained 0.01 μg/ml of ketamine.

7.  Records of Transport Department showed that the defendant's probationary driving licence had expired on 30 May 2022.  In other words, he drove the Car without a valid driving licence.

Admissions

8.  In his record of interview, the defendant admitted having purchased $8,000 worth of drugs from someone named "Ah Lung" at Ngau Chi Wan Park for self-consumption.  The 3 packs of crack cocaine found in his shorts pocket were for his personal use; whereas the 14 packs contained in the cigarette box were to be consumed later.  The defendant also admitted having consumed ketamine in the evening of his arrest.  He has a habit of using crack cocaine and ketamine.

9.  After his arrest on 14 November 2022, the defendant was released on police bail pending further investigation.  He absconded on 14 December 2022 and was re-arrested on 23 August 2024 following his repatriation from Japan to Hong Kong.

Mitigation & Sentence

10.  The defendant is 28 and has 1 conviction record, which was a "drug trafficking" offence.  Regarding his traffic record, he has 1 "speeding" conviction; 5 fixed penalty tickets and 2 convictions, all for the same non-driving related offence.  Defence counsel Mr. Yuen informed me that the defendant is a single parent with a daughter (aged 11).  In mitigation, Mr. Yuen submitted that the defendant is committed to turning over a new leaf and setting a positive example for his daughter.

11.  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 offenders)  would most certainly be punished by long-term imprisonment.

12.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in 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 cocaine, it ranges from 2 to 5 years' imprisonment.

13.  In Charge 1, the defendant trafficked in 4.66 grammes of cocaine.  Mr. Yuen did not raise any claim for self-consumption.  Applying a strict arithmetical approach, the appropriate starting point is 41 months' imprisonment, which I would adopt.  With the timely guilty plea, I sentence the defendant to 27 months' imprisonment for this charge.

14.  For Charge 2, the defendant knowingly drove after consuming ketamine, an extremely irresponsible and potentially fatal act.  An immediate custodial sentence is required.  The fact that no one was injured and no property was damaged is no mitigation; it was pure luck.  Bearing in mind the maximum penalty for this offence[1], I adopt a starting point of 6 months' imprisonment.  With the timely guilty plea, I sentence the defendant to 4 months' imprisonment for this charge.

15.  Regarding Charge 3, for a 1^st conviction of this offence, the maximum penalty is a fine of $5,000 and imprisonment for 3 months.  People who commit this offence are usually not qualified to drive; whereas the defendant was qualified to drive but had failed to renew his driving licence (probationary or otherwise).  I adopt a starting point of 3 weeks' imprisonment.  With the timely guilty plea, I sentence the defendant to 2 weeks' imprisonment for this charge.

Overall sentence

16.  Charges 2 and 3 arose from the defendant driving after consuming ketamine and without a valid driving licence.  To some extent, Charge 2 constituted an aggravating factor in Charge 3.  On the other hand, Charge 1 is clearly separate and distinct from the 2 driving-related offences.  I have reminded myself not to punish the defendant twice.  Bearing in mind the totality principle, I order the sentences for Charges 2 and 3 to run concurrently; and 3 months in Charge 2 to run consecutive to the sentence for Charge 1.  The total prison term for all 3 charges is thus 30 months.

Other orders

17.  For Charge 2, I make a disqualification order for a period of 2 years[2]. More than 3 years have lapsed since the expiry of the defendant's probationary driving licence.  If he wants to drive again, he needs to re-take the road test.  I do not see the need for him to complete a Driving Improvement Course because he will learn from scratch again.  I make no order in this regard for this charge.