HKSAR v. WONG WING HONG, RICKY

HCCC 285/2023

[2024] HKCFI 669

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 285 OF 2023

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant pleaded guilty to one count of trafficking in dangerous drugs involving 38.88 grammes of a solid containing 33.74 grammes of ketamine; and 44.65 grammes of a solid containing 42.22 grammes of cocaine.

On 29 October 2021, the defendant was sitting on the driver’s seat of a vehicle with registration number SR7119 which was parked at the roadside of Heng Lok House, Tin Heng Estate, 83 Tin Shui Road, Tin Shui Wai, New Territories. The vehicle was intercepted by two police officers and the defendant was demanded to get off for enquiry.

During a search in the car, the following items were found:

(1)  One paper cup placed in the door handle on the right-hand side of the driver’s seat, containing a total of 8.53 grammes of a solid containing 7.39 grammes of ketamine; and a total of 4.76 grammes of a solid containing 4.56 grammes of cocaine;

(2)  one white plastic bag hanged on the gear stick on the left side of the driver’s seat, containing a total of 9.95 grammes of a solid containing 8.62 grammes of ketamine; and a total of 17.25 grammes of a solid containing 16.28 grammes of cocaine;

(3)  one yellow plastic bucket and one plastic black bag in the car trunk, containing a total of 20.4 grammes of a solid containing 17.73 grammes of ketamine; and a total of 22.64 grammes of a solid containing 21.38 grammes of cocaine.

In a subsequent video-recorded interview, under caution the defendant admitted that:

(1)  The vehicle SR7119 belonged to him.

(2)  On 29 October 2021, an unknown male met the defendant for the first and only time. This unknown male asked the defendant to deliver some products, and later gave the drugs to him which he knew were dangerous drugs.

(3)  The unknown male would call the defendant to a particular place to deliver the dangerous drugs. Three mobile phones of the defendant had been seized, and the defendant admitted one of the phones was used for the said drug trafficking activities. The defendant would sell the drugs for $200 per pack, and would earn $2,000 per day.

(4)  Upon arrest, the defendant had $6,213 with him. He said that $5,770 was given by others to him for the transaction of dangerous drugs; the remaining $433 belonged to himself, and was not related to any drug trafficking activity.

The estimated market price of the ketamine involved was $25,933 and the cocaine was in the range of $47,954 for cocaine powder and $83,228 for crack cocaine.

The Defendant’s background and Submission in Mitigation

The defendant was 34 years old at the time of the offence and had no previous convictions. He received education up to Form 5 and was a SF Express transportation worker.

The defendant was the eldest son of the family and had taken up the burden of supporting the family. The defendant had always held jobs since leaving school, and always been

responsible and hardworking, and was able to make regular contribution to his parents. He had saved up enough money to buy the light goods vehicle in question, that is SR7119, several years ago and had since been working as an independent goods delivery worker. He also worked as a private swimming coach to supplement his income.

Unfortunately with the onset of the pandemic and the restrictions imposed, the defendant lost a considerable amount of income and had been under huge economic pressure. He could not maintain his regular contribution to his parents. It was submitted to me that the defendant agreed to assist in the delivery of drugs out of a moment of weakness and at a time when he was financially vulnerable.

Attached with the submissions were two letters written by the defendant’s father and younger brother. Both letters spoke to the defendant’s normal character as a friendly, hardworking and filial young man with no bad habits. The defendant was sociable and liked by family and friends. The defendant’s involvement in this serious offence was out of character.

Both letters also mentioned the defendant’s mother is weak and seriously ill and said she was deeply missing her son, as well as the defendant’s remorse towards his offending.

Ms Barbara Wong acting for the defendant also provided this court with further information about the defendant’s mother’s illness. Ms Wong informed the court that the mother is suffering from a relapse of a cancer condition, she is undergoing immunotherapy and targeted therapy but the results so far have not been promising.

I have also been handed a number of certificates issued by the Grace International Academy as well as being informed that the defendant had taken other courses to equip himself with new job skills. These indicate that the defendant has taken active steps during remand to turn a new leaf, with the hope of starting a fresh and law-abiding life when he is released from prison.

Sentencing Principles and Tariffs

The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I shall follow the six-step sentencing approach set out in that case.

The first step is to identify the relevant guideline band or bracket applicable to the type and quantity of the drugs concerned.

The sentencing tariffs for trafficking in ketamine are provided for in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. For quantities of 10 grammes to 50 grammes, the sentencing band is 4 to 6 years.

The sentencing tariffs for trafficking in cocaine are provided for in R v Lau Tak Ming and Others [1990] 2 HKLRD 370. For quantities of 10 grammes to 50 grammes, the sentencing band is 5 to 8 years.

The second step is to assess the defendant’s role and culpability based on the evidence. The defendant admitted that he helped to deliver the dangerous drugs for an unknown man and the defendant would earn $2,000 per day. On the evidence, there is little to suggest that the defendant had any significant role beyond an ordinary courier or storekeeper. I would assess his culpability accordingly.

The third step is to identify where in the relevant band the defendant comes. The starting points for trafficking in 33.74 grammes of ketamine and 42.22 grammes of cocaine by a pure arithmetic calculation are 62 months and 88 months’ imprisonment respectively after rounding down. I cannot see any basis for departing from them.

In the case of trafficking in multiple drugs, according to HKSAR v Yip Wai Yin and Another [2004] 3 HKC 367, the court will first need to consider whether the “individual approach” or the “combined approach” should be used.

Which approach is appropriate would depend on the circumstances of the case. As a rule of practice, where the sentencing brackets for two types of dangerous drugs are not dissimilar, it is appropriate to adopt the “combined approach” whereas if the two drugs are disparate in quantity and potency, the “individual approach” is to be preferred. Here, I would adopt the combined approach.

There are three means to cross-check the appropriateness of the overall starting point in the case of cocktail drugs, namely the “absurdity test”, “conversion test” and “ratio test”.

Under the absurdity test, the quantity of all drugs seized, that is 75.96 grammes, is assumed to be the same drug. For 75.96 grammes of cocaine, the starting point will be 104 months, that is 8 years 8 months.

Under the conversion test, by converting the ketamine sentence into cocaine, which is the more potent drug, this will give a total of 54.44 grammes of cocaine. The starting point will then be 97 months, that is 8 years and 1 month.

Under the ratio test, 55.58 per cent of the total quantity is cocaine and 44.42 per cent of the quantity is ketamine. Applying the ratio test would result in a starting point of 91 months, that is 7 years and 7 months.

Cocaine is the more potent drug in this case. The quantity of cocaine itself would result in an arithmetic starting point of 88 months, that is 7 years and 4 months.

Taking into account the results of the various tests mentioned, I consider it fair to make an upwards adjustment of 6 months, leading to a notional starting point of 7 years and 10 months’ imprisonment.

The fourth step requires the court to consider whether there are any aggravating factors. A cocktail drug trafficking offence is an aggravating factor because in such a situation, the trafficker is able to cater to a wider market. I would therefore enhance the starting point by 3 months. This leads to a term of 8 years and 1 months’ imprisonment.

The fifth step is to consider all mitigating factors. The main mitigating factor in this case is the defendant’s guilty plea. He is entitled to one-third discount off the starting point. This will reduce the sentence to 5 years and 4 months after rounding down.

Whilst I have sympathy for the medical condition of the defendant’s mother and the defendant’s understandable wish to be released earlier to be with his mother, I have borne in mind the observations of the Court of Appeal in both HKSAR v Abdallah [2009] 2 HKLRD 437 at paragraph 32 and Yusuph at paragraph 44 where the Court of Appeal stressed the seriousness of drug trafficking and the problems that it brings to families and the serious harm that it causes to society. As stated by the Court of Appeal:

“The message must be consistently delivered, even to the vulnerable such as the relatively young and those who say they need money whether for themselves or for the benefit of family members who are ill, that the vast majority of vulnerable people do not succumb to pressure and do not resolve their problems by engaging in this illicit and dreadful trade.”

Accordingly, the defendant’s personal circumstances and that of his family do not allow this court to provide any further discount to his sentence.

I will sentence you to a term of 5 years and 4 months’ imprisonment.