HKSAR v. CHEUNG KWAN WAH, WIN

DCCC 161/2021

[2022] HKDC 402

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 161 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of trafficking dangerous drugs, namely 6.90 grammes of a solid containing 5.77 grammes of cocaine and 4.35 grammes of a crystalline solid containing 4.35 grammes of Ice.

Summary of facts

2.  On 21^st October, 2020, the police conducted an anti-narcotic operation on the floor of which the defendant lived.

3.  When the defendant came out from Room F, the police stopped her outside Room D.  The defendant had one bag each on her hands.

(a)  One bag containing 32 re-sealable transparent plastic bags of which contained containing 4.62 grammes of cocaine.

(b)  The other bag containing 4 re-seabale transparent bags containing 4.22 grammes of ice

4.  On her person, 2 mobile phones and $4,651 were seized.

5.  During a house search, small amount of drugs and other items were found and seized:-

(a)  3 re-sealable transparent plastic bags containing 1.15. grammes of cocaine;

(b)  One re-sealable transparent plastic bag containing 0.13 grammes of Ice;

(c)  A glass bottle and an electronic scale;

(d)  $3070 on a sofa;

(e)  $4090 inside a box;

(f)  Numerous re-sealable transparent plastic bags.

6.  In a video recorded of interview, the defendant said under caution that :-

(a)  She knew the narcotic were cocaine and ice;

(b)  She purchased them at $4,000 for her self-consumption on 21 October 2020;

(c)  She rented Room F since August,2020 for $10,000;

(d)  She took drugs since the age of 20;

(e)  She was a partime cleaner and earned about $800 per day.

7.  The retail price as at October,2020 were $19,086.

6.9 g of cocaine x $2,357/g = $16,263

4.35g of Ice x $649/g = $2,823

Total = $19,086

Criminal Conviction

8.  The defendant has 6 previous convictions from 2012 to 2018, three were drugs related offences, the last 2 convictions were in November, 2018 for a charge of trafficking dangerous drugs and one charge of possession of dangerous drugs.  She was discharged from prison in September, 2019.

Mitigation

9.  The defendant is now 50 years old, she married at the age of 22 and was divorced on the following year.  She lived with her boyfriend prior to the arrest.

10.  She has been a drug addict since the age of 20.

11.  The defendant previously worked as a cleaner, earning about $14,000 to $15,000 per month and provided half of her earnings to support her mother.  At the time of the offence, the defendant has been unemployed for 6 months and relied on her boyfriend to support her.

12.  She is now remorseful and determined to turn over a new leaf.  She has successfully completed a distance learning programme which was organized by the Chinese University of Hong Kong with a view to become a law clerk in the future.

Sentence

13.  The defence submitted that the combined approach should be adopted for the present case as the potency in cocaine and ice is not so great and cocaine is the majority of the total narcotic:-

(a)  The total quantity of the narcotic is 10.12g (4.35g of ice + 5.77g of cocaine);

(b)  Ice made up of 43% (4.35g of 10.12g);

(c)  Cocaine made up of 57% (5.77 g of 10.12g);

(d)  The difference is 14% (57% - 43%).

14.  As the quantity of 10.12g of ice, according to the sentencing guideline of AG v Ching Kwok Hung [1991] 2 HKLR 125, it falls into the sentencing bracket of 3 to 7 years.  That is a sentence of 7 years.  After discount, it comes down to 4 years 8 months.

15.  As the quantity of 10.12g of cocaine, according to the sentencing guideline of R v Lau Tak Ming [1990] 2 HKLR 370, it falls into the sentencing bracket of 2 to 5 years.

16.  That is a sentence of 5 years.  After discount, it is 3 years 4 months.

17.  The defence relied on the decision of HKSAR v Wan Lau Mei CACC 389/2013 that the this court should use cocaine as the base drug for calculation of the sentence as cocaine represented 57% of the total narcotic in question.  However, in Wan Lau Mei’s appeal case, the quantity of the drugs were as follow:-

2.75 g of Ketamine
6.05 g of Ice	} account for 25%
5.47 g of heroin	} account for 65 %
10.62 g of cocaine
Total: 24.89 g of narcotic

18.  The bulk of cocaine/heroin is 65% and the difference is 40% (65%-25%).

19.  In the present case, the quantity of the 2 types of dangerous drugs is similar, only a difference of 14 %.

20.  As said in the case of HKSAR v Yip Wai Yin and Other [2004] 3 HKC 367 at 371H-372 F:-

“ 9. In a number of decisions of this court, various approaches have been adopted or approved in relation to the sentencing of cocktail drugs or where a number of different quantities of drugs is the subject of a charge of trafficking in dangerous drugs:

(1)  …

(2)  …

(3)  The methodology of this combined approach is first to calculate the applicable sentence for the more or most serious drug, and then adjust the sentence upwards to take into account significant quantities of the other (less serious)  drugs — see HKSAR v Cheung Kwok Leung (CACC 539/2002, 22 April 2003, unreported)  (CA). By ‘the more or most serious drug’, we are not referring to quantities but to seriousness in terms of the potency of the drug. Thus, for example, where significant quantities of Ice and Ketamine are found in a cocktail, the more serious drug is taken to be Ice even [if] in terms of quantity, it may be less than the Ketamine.”

21.  At the end, the defence accepted that ice is the “more and most serious drug” in the present case. Ice should be used as the base drug for calculation.

22.  The defence further submitted the results of the absurdity test, conversion test and ratio test, the 3 results are as follow after 1/3 discount and the Prosecution agreed to the correctness of the calculation:-

(a)  Absurdity test:	4 years 8 months (starting point is 7 years)
(b)  Conversion test:	3 years and 7.71 months (starting point is 5 years 5.57 months)
(c)  Ratio test:	3 years and 8.8 months (starting point is 5 years 10 months)

23.  According to the case of HKSAR v Islam S M Majharul HKSAR CACC 67/2019 that the Court of Appeal had adopted a 7 steps methodology in arriving a proper and just sentence for the combine approach.

24.  Applying the 7 steps approach in the present case:-

(a)  In term of potency, Ice is “more or most serious drug” than cocaine. On this basis, the correct base drug is Ice.

(b)  According to AG v Ching Kwok Hung [1991] 2 HKLR 125, as the quantity of ice is 4.35g, it falls into the sentencing bracket of 3 to 7 years for quantity up to 10 grammes. The arithmetic calculation for the starting point is therefore 4 years 9 months’ imprisonment.

(c)  As to amount of cocaine is 5.77 grammes, it corresponds to a sentence of 3 years and 9 months according to the sentencing guideline of R v Lau Tak Ming [1990] 2 HKLR 370.

(d)  The defence said that out of the 3 tests, conversion test results in the lowest starting point, that is 5 years and 5.57 months.

(e)  Taking into account of the quantity of 5.77 grammes of cocaine comprises of 57% of the total quantity of the narcotic, I consider that the starting point should be adjust upward for a period of 8 months. It arrives at 5 years and 5 months. (4 years 9 months + 8 months)

(f)  There were 2 different types of drugs being trafficked, as said by the Court of Appeal in Wan Lau Mei that this should be treated as an aggravating factor “because in such a situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug.”

(g)  I considered that 3 months’ enhancement is appropriated. The defence suggested “less than 3 months” because only 3 months were enhanced in the case of Islam S M Majharul for a starting point of 12 years.

a. I disagree. As stated in the case of Islam Majharul, it is subject to the discretion of the sentencing court (paragraph 29 of the judgement refers.)

b. The enhancement of the sentence is not a question of ratio to the starting point. It is to reflect the overall culpability of the offence which the defendant had committed.

c. To this end, the total sentence is 68 months (4 years 9 months + 8 months + 3 months), that being 5 years 8 months.

(h)  The defendant is entitled to a 1/3 discount for her timely plea. That arrives at a sentence of 3 years and 9 months and 10 days.

25.  Against this background, I impose a sentence of 3 years and 9 months and 10 days against the defendant.