HKSAR v. PONG KWOK CHI

DCCC 108/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 108 OF 2017

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge of trafficking in a dangerous drug. In this charge, there are two drugs: 9.68 grammes of cocaine and 1.37 grammes of a powder containing what equates to “Ecstasy”.

2.  The facts of this case are straightforward.  On 22 October 2016, at about 1.15 in the morning, a police officer spotted the defendant in Hanoi Road, Tsim Sha Tsui.  He acted nervously when he saw the police officer.  Police officer was suspicious and intercepted the defendant.  His suspicion was entirely accurate because they found on the defendant 50 plastic bags containing the quantity of cocaine and five plastic foil packets quite expertly packed and labelled as Chinese caterpillar fungus.  In it was in fact “Ecstasy” powder.  The defendant also had a mobile phone on him and six SIM cards. 

3.  The quantity of both drugs added up to an estimated value of about $12,000.

4.  The defendant’s best mitigation is his plea of guilty today.  He is only 23 years old, a relatively young man, and has a previous clear record.  He was a decoration worker earning about $700 a day. He lives with his family.  They are an intact family.  They are clearly very supportive.  They are in court today, and I have letters from them. 

5.  I have been told in mitigation that in about 2014, the defendant through peers who were a bad influence started to abuse drugs.  He says in his own letter that he has been using drugs for quite a long time.  I have also been told that he admits he bought the drugs himself.  He intended to take some himself as well as sell to his friends in discos and bars.

6.  I have five letters from the defendant’s family members, an employer and a social worker.  These five letters I will not repeat the details.  They all explain the defendant as being a filial son who has made a very serious mistake.  He is genuinely remorseful, promises not to reoffend and asks for leniency.  

7.  The defence also submits, as I have said, part of the drugs was for own consumption, and I have been supplied with two authorities by the defence to support this submission.  That is HKSAR v Chow Chun Sang CACC 135 of 2011 as well as HKSAR v Tam Ling Yuen CACC 159 of 2015.  The Court of Appeal is of the view that where a court accepts part of the drugs would be for own consumption, a discount can be applied to the starting point. 

8.  The Court of Appeal has set out a broad range and a discount can be between 10 to 25 per cent.  Exactly what per cent is appropriate can depend on certain factors, including the quantity and nature of the drug; how it is packaged; where the defendant was arrested, be it on the street, in a disco or at home.  Also the background, criminal record of the defendant is relevant.

9.  The Court of Appeal also emphasises that despite this discount, the latent-risk factor should not be ignored.  That means a portion of the drug intended for the defendant’s own consumption may still be sold or given to others.

10.  Relevant factors here are that the defendant had a clear record.  There is no direct evidence he is a drug addict or abuser except for his submission.  The defence do not try and quantify how much would be for own use.  The defendant does have the means to buy such a quantity. Earning a good salary each day and living at home, he can afford to buy drugs of this nature and quantity.   

11.  The prosecution is neutral in its stance to this mitigation which I take to mean they do not object to this mitigation.  I will accept that part was for his own consumption.

12.  I turn to the guidelines for trafficking drugs in this case.  For trafficking cocaine, the Court of Appeal has said the guidelines for trafficking heroin and cocaine are the same.  Where between 0 to 10 grammes is trafficked, a starting point of between 2 to 5 years is appropriate.  Here, the quantity is 9.68 grammes.  So, basically, mathematically speaking, the starting point should be 5 years.

13.  The second type of drug in this case, Exhibit 2, is a powder form of “Ecstasy”.  The Court of Appeal has said in the authority of Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323 where up to 1 gramme of “Ecstasy” is trafficked, it is the court’s discretion how to sentence.  Where it is between 1 to 10 grammes of “Ecstasy”, a starting point of between 2 to 4 years would be appropriate.  Here, the quantity involved is 1.37 grammes.  I take the view that the starting point would be at my discretion.

14.  There are two types of drugs, and I have to decide how to come to an appropriate starting point.  Do I take the individual or combined approach where there is more than one drug involved?  I have taken into account the authority of HKSAR v Yip Wai Yin & Another [2004] 3 HKC 367.  The methodology of the combined approach is to first calculate the applicable starting point for the more or most serious dangerous drug.  Here, it is obviously the cocaine.  Then I would adjust that starting point upwards to take into account the other drug. 

15.  Defendant, please stand up.  Are you feeling well enough to stand?

DEFENDANT: Yes.

16.  All right.  It is a significant quantity of drugs in this case.  But at the same time, you had a clear record.  You are a young man at 23.  You still have great family support.  It appears that your remorse is genuine.  I would like to believe that you are telling the truth when you say you have learnt your lesson and will not reoffend.  I would like to believe that.  I am going to accept the mitigation that part was for your own consumption.

17.  Having taken into account all of those relevant factors, I will take a starting point first for the quantity of cocaine.  I take a starting point of 4 years.  I will add to that 6 months to reflect the quantity of the second drug.  That is a starting point of 4 years and 6 months.  I will reduce that by 9 months to reflect that some of the drugs would have been for your own consumption.  That is a discount of approximately 17 per cent.  This reduces the starting point to 3 years and 9 months.  You have pleaded guilty.  You are entitled to a discount of one-third.  That is a discount of 15 months.  After that discount is applied, for this offence, you are sentenced to 2 years and 6 months’ imprisonment. Do you understand that sentence?

DEFENDANT: Yes.