HKSAR v. WONG WAI SUN

DCCC 750/2021

[2022] HKDC 631

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 750 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 2 charges:-

(1)  Trafficking dangerous drugs, namely 3.45 grammes of a solid containing 2.91 grammes of cocaine;

(2)  Driving a motor vehicle with concentration of specified illicit drugs in his blood, namely:-

(i)  traces of cocaine;

(ii)  0.02 microgramme of ketamine per milliliter of blood;

(iii)  0.53 microgramme of benzoylecgonine (a metabolite derived from cocaine)  per milliliter of blood; and

(iv)  0.03 microgramme of ecgonine methyle ester (a metabolite derived from cocaine)  per milliliter of blood.

Summary of facts

2.  On 13 March 2021 at 1:45 am, the police noticed a private car which was being driven by the defendant was travelling toward Kwai Chung in an unsteadily manner.

3.  Upon search of the defendant vehicle, the police found:-

(a)  One packet containing traces of ketamine under the grip handle of the driver’s door;

(b)  One resealable plastic bag containing 13 transparent resalable plastic bags containing a total of 2.18 grammes of a solid containing 1.97 grammes of cocaine under the accelerator;

(c)  One resealable plastic bag containing 7 transparent resealable plastic bags containing a total of 1.12 grammes of a solid containing 0.81 grammes of cocaine inside the air vent next to the steering wheel;

(d)  One resealable plastic bag containing 0.15 grammes of a solid containing 0.13 grammes of cocaine under the driver’s seat.

4.  There were 4 mobile phones and cash $3,236 found inside the vehicle while $5,240 was found on the defendant.

5.  The defendant was arrested for trafficking dangerous drugs.  He said the drugs were for his own consumption.

6.  The Rapid Oral Fluid Test returned a positive result for the presence of cocaine and ketamine.

7.  Subsequent forensic examination of the defendant’s blood sample detected a concentration of dangerous drugs as stated in the particular of offence.

8.  The defendant admitted under caution that:-

(a)  He bought 30 small packets of cocaine and one packet of ketamine at about $7,000 several hours before his arrest;

(b)  He consumed around 3 to 4 packets of cocaine and one packet of ketamine before driving home;

(c)  He borrowed the car a week or so from his friend who was in Mainland China at the material time.

9.  The estimated street value of the dangerous drugs was $6,500.

Criminal record

10.  The defendant has 9 previous criminal convictions from 1998 to 2019.

11.  He has all together 6 previous convictions of trafficking in dangerous drugs:-

(a)  2003 – for 2 offences of trafficking dangerous drugs (heroin), sentenced to 5 years 4 months and 8 years respectively;

(b)  2012 – for trafficking dangerous drugs (ketamine and cocaine), sentenced to 30 months;

(c)  2014 – for trafficking dangerous drugs (cocaine), sentenced to 28 months;

(d)  2016 – for trafficking dangerous drugs (cocaine), sentenced to 28 months 2 weeks;

(e)  2019 – for trafficking dangerous drugs (cocaine), sentenced to 40 months.

Personal background and mitigation

12.  The defendant is 39 years of age.  He was previously employed as a casual worker in the construction industry.  He made about $16,000 in the month December 2020.  His daily wage was $800 to $1,000.

13.  He was a drug addict, but not deep rooted.  He would consume 4 to 10 packets (ie up to 1.5 g)  by inserting the drugs into the cigarette to inhale the smoke.

14.  The Defence asserted that the defendant had purchased 30 packets.  He had consumed 9 packets before his arrest.  Therefore, the police found 21 packets in the car.  Out of the 21 packets, 6 packets of the drugs seized were for his own consumption, which was about 1 gramme out of the 2.91 grammes of total narcotic content while the remaining 15 packets were for his friend, a Mr. NG,  who was waiting for him in his flat in Kwai Chung.  The defendant had already received $3,500 from his friend to purchase the drugs for him.

15.  The defence also said that:-

(a)  $3,236 was the material costs from the defendant’s employer to purchase construction materials for his decoration works;

(b)  $5,240 was the savings from his earnings as a casual worker;

16.  As to the four mobile phones seized from the vehicle, the Prosecutions confirmed that only two belonged to the defendant.

17.  The vehicle in question was borrowed from a friend who left two mobile phones inside the vehicle.

18.  The defence accepted that to ask for 20% discount from the starting point was too “aggressive”.

19.  The defence also accepted that since the defendant is a repeat offender, enhancing sentence from the starting point is justified in the present circumstances.

20.  As to Charge 2, the defence relied on HKSAR v Cheng Man Fai DCCC 598/2012 and persuaded this court to adopt a starting point of 3 months.

Sentence

Starting Point

21.  The sentencing guideline for cocaine can be found in R v Lau Tak Ming [1990] 2 HKLR 370, the appropriate starting point is less than 10 g of cocaine falls into the sentencing bracket of 2 to 5 years’ imprisonment.

22.  In the present case, the total quantity of the narcotic content is 2.91 grammes of cocaine, attracts a sentence of 2 year and 10 months.

Enhancement of the starting point

23.  As the defendant has 6 previous convictions of trafficking dangerous drugs, the last 4 convictions, from 2012 to 2019, all involved the trafficking of cocaine.  In 2014 and 2016, the two sentencing judges also enhanced the starting point by 4.2 months and 6 months respectively.

24.  In 2019, the sentencing judge did not enhance his sentence[1] but did indicate that a 6 months’ enhancement was appropriated given his similar convictions record.  As such, the defence could not rely on 2019 sentence to persuade this court not to enhance the starting point in the present case.

25.  I am duty bound to enhance the starting point, if I fail to do that, I am not performing my task properly as it gives a wrong message to the public and the defendant that he could get away from it again when he committed the same offence.

26.  Further, the defendant committed the present offence 9 months after his release from prison on 13 June 2021.

27.  The principle relating to the sentencing of persistent offenders were set out in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830.

28.  The defendant is evidently undeterred by the sentence imposed on him.  He re-offended time and again.  I find it necessary to enhance the starting point in order to achieve the necessary element of deterrence.

29.  In the present circumstances, I consider that a period of 9 months is appropriate.

Self-consumption

30.  I now come to the mitigation of self-consumption. The applicable principles can be found in HKSAR v WONG Suet Hau & other [2002] 1 HKLRD 69.

31.  The defence informed this court that the defendant would not give evidence in relation the claim of self-consumption.  Clearly, if he is not up to proof, he may lose the 1/3 discount.

32.  I informed the defence that according to HKSAR v Cheung Wai Man [2019] HKCU 176:-

(a)  “that a claim of self-consumption needs to be established to the sentencing court’s satisfaction. There is a real danger of abuse in this avenue of mitigation, hence a sentencing court must have a proper factual and evidence basis in accepting the contention that a “significant proportion” of the drugs were for the defendant’s own consumption.” [paragraph 54]

(b)  “mere assertion by counsel from the bar table, --- will generally not suffice….. it is important for a defendant in making a claim of self-consumption to put before the court credible and reliable information and material in an acceptable form” [paragraph 54]

33.  In mitigation, the defence said that:-

(a)  The defendant purchased 30 packets and consumed 9 packets before arrest, therefore, 21 packets were seized;

(b)  Out of the 21 packets, 15 packets were for his friend, Mr. NG, who had already paid him $3,500 and was waiting for him in his flat;

(c)  The remaining 6 packets were for his own consumption (21 packets – 15packets).

34.  I first deal with his financial situation.

35.  According to the defence, his monthly outgoing are as follows:-

a)     Electricity, water and rents:	$4,000
b)    Foods:	$5,000 to $6,000
c)     Drugs:	$3,000 to $4,000
d)    Cigarette:	$1,000
TOTAL:	$13,000 to $15,000

36.  The defendant said that he received $9,000 for the month of March 2021 on the 10^th March.  His next pay day would be on 25^th March.

37.  When he was arrested on 13^th March, 2021 at 1:45 am, that was a Saturday.  The defence confirmed that the defendant had no work on that day.  It showed that the defendant did not have work on each working day as he was a daily paid worker.

38.  And also, in the month of December 2020, he only made $16,000 because there were a number of public holidays.

39.  In March 2021, Hong Kong is still in the middle of the pandemic.

40.  A lot of businesses suffered.  It is a vicious cycle affecting all walks of life.  A lot of people were out of jobs and unemployed.

41.  The defendant did not possess any special skills.  He can only take up manual labour works, pays on daily basis.

42.  He could not provide any document to support the facts that he actually could made a living by earning a daily wage of $800 to $1,000.

43.  He said that all his wages were received in cash.  In this digital world, money can be transferred by pressing a few buttons instead of taking the trouble to go to the bank to retrieve cash and carry them around.

44.  This is the danger of accepting mere assertion from the bar table as the defendant can say whatever suits himself while the defence counsel can only do the best to persuade the court to accept that it is the truth without any reliable and factual proof.

45.  Nonetheless, from the monthly outgoing of $13,000 to $15,000, there must be at least other irregular/occasional spending in his daily life.

46.  At least there were extra $400 to pay for petrol of the vehicle and $300 for the ketamine he consumed on that day.  That adds up to an extra of $700.

47.  I can see that the defendant was in fact living in deficit.  He clearly has no savings.

Each packet of drug costs

48.  The summary of facts which he also admitted stated that the street value of the 21 packets costs around $6,500.

49.  Mathematically, that means $309.50 ($6,500 / 21 = $309.50)  per packet.

50.  For 30 packets:- $309.50 x 30 = $9,285.

51.  Taking $7,000 as a base, each packet costs $233.

Whether it was 3 to 4 packets? 6 to 7 packets? 8 to 10 packets? Or 9 packets?

52.  The defendant initially said under caution that he had consumed 3 to 4 packets before he was arrested.  He later changed to 6 to 7 packets, then to 8 to 10 packets.  Finally, in Court, he said that it was 9 packets that he had consumed.

53.  He bought 30 packets, if he consumed 3 to 4 packets, there would be 26 packets left.  Now, only 21 packets were seized. The defendant knew this Court would ask where was the remaining 5 packets?

54.  The only convenient way for him to tell this Court was that he had consumed 9 packets.  He did not need to explain any further.

55.  Do I accept his claim of taking the 9 packets which were about 1/3 of his total purchase? NO!

56.  Firstly, assuming $7,000 is the actual cost of the lot of 30 packets, 9 packets equalled to $2,099 ($7,000 / 30 x 9 packet)  and it was around 1/3 of the total packets of drugs he purchased.  Together with $300 for ketamine, he spent $2,399.

57.  It was a lot of money to spend on one go when the defendant lived in deficit.

58.  Secondly, the defence said that he was not a deep rooted addict, why he would take 9 packets?

59.  This is simply not a credible explanation.  I refused to accept his assertion that he has taken 9 packets as claimed.  I accepted that he had taken 3 to 4 packets in the first response under caution.

15 packets for his friend, Mr. NG?

60.  Again, in the record of interview, which was taken some 18 hours later on the same day after his arrest, the defendant never mentioned his friend, Mr. NG, was waiting for him and Mr. NG had paid him $3,500 for the 15 packets.

61.  The defence said that the defendant had no financial gain by acting as a buyer and courier for the delivery of this 15 packets of cocaine for Mr. NG.

62.  Also, how did Mr. NG know in advance that each packet costs $233?

63.  The drugs found in the vehicle were packed into:-

(a)	13 packets –	(contained in one resealable plastic bag)  which were hidden under the accelerator
(b)	7 packets –	(contained in one resealable plastic bag)  which were found inside the air vent of the vehicle
(c)	1 packets –	under the driver seat

64.  They were not packed into one resealable bag containing 15 packets.

65.  I found this assertion totally unbelievable. The defendant had been convicted previously for trafficking dangerous drugs. Between 2012 and 2019, he had been in and out of prisons for 4 times.  Each time he received long period of sentence, from 28 months to 40 months.

66.  During his periods of remand, his wife divorced him, he lost his father when he served his 40 months’ sentence imposed on him in 2019.

67.  The question to ask, why would he take risk again as a buyer and courier for Mr. NG?  It was a long journey from Yuen Long to Kwai Chung where he lived, he could have stopped by the police anytime, he should have known the risk he faced was high.

68.  Learning from past experience, the defendant knew the sentence was a long one when he was arrested again.  Why would he do it freely for Mr. NG?

69.  In my judgement, what he is trying to do is to persuade this Court to accept that Mr. NG had given him $3,500 to buy drugs, he only contributed $3,500, all he wanted to show was that he did not spend as much as $7,000 on his own to buy the whole lot as he was financially incapable to afford it.

What about the 6 packets which amounts to $1,398 ($233 x 6)? Are they for the defendant’s self-consumption?

70.  The defendant said that he had taken the drugs before he started driving back to Kwai Chung.

71.  The summary of facts stated that the Rapid Oral Fluid test conducted at the scene returned a positive result for the presence of cocaine and ketamine.

72.  Subsequent forensic examination of the defendant’s blood sample detected a concentration of traces of cocaine and other drugs as stated in the charge 2, two types were metabolite derived from cocaine.

73.  The defendant said that he inserted cocaine into cigarette to inhale the smoke.

74.  From the photos taken at the scene, there was a packet of cigarette just under the driver seat.  There was also one plastic bag containing 0.13g of cocaine which was found under the driver seat.

75.  As discussed previously, the 2 lots of drugs were packed into:-

(a)  13 packets – hidden under the accelerator;

(b)  7 packets – inside the air vent of the vehicle

76.  They were not packed into:-

(a)  15 packets;

(b)  6 packets.

77.  To this end, I accepted that the packet of 0.13g of cocaine found under the driver seat was for the defendant’s consumption.

78.  0.13g equals to 4.5% of the total narcotic content, I can only say that the defendant has not met the threshold test, that is not the “significant proportion” of the drugs for his consumption.

79.  As stated in HKSAR v Cheung Wai Man [2019] HKCU 176 that:-

“if he does not meet this threshold, he is not entitled to the discount suggest in Chow Chun Sang.”

80.  I refused to give him any discount from the starting point as he simply not entitled to it.

81.  The sentence for Charge 1 is therefore 2 year 10 months plus 9 months’ enhancement.  Allowing 1/3 discount for his guilty plea, it comes down to 2 years 4 months 20 days.

Charge 2

82.  I now turn to Charge 2.  That is the drug driving charge.

83.  As to his driving record showed, he obtained driving licence in 2010, he had one conviction for careless driving in 2018 and 5 speeding records.

84.  In another words, this is his first conviction to commit drug diving offence.

85.  The maximum sentence for this S.39K(1)  of the Road Traffic Ordinance, Cap 374 is one of 3 years’ imprisonment plus a disqualification period.

86.  The defence accepted that there is no sentencing guideline for S.39K(1)  offence.

87.  However, as stated in Secretary for Justice v Chan Hon Hoi [2011] HKCU 83 that:-

“driving under the influence of drugs is a clear danger on the roads and must be deterred in order to protect the public at large” because “driving” is a very complex skill determined by changes in physical, emotional and mental conditions all of which can be impaired by the used of drugs, Drugs also impair motot coordination skills and jdugement, rendering a driver incapable of driving responsibly and safely.” [paragraph 24]

“drivers who knowingly drive a car whilst under the influence of drugs must expect a heavy sentence.” [paragraph 27]

88.  In the present case, the defendant took dangerous drugs before he started to drive.  His driving manner was unsteady which attract the attention of the police and he was eventually stopped for a search.

89.  He said that he purchased the drugs from Sheung Shui and he was on his way home to Kwai Chung.  One must expect that it is a long way home.

90.  His deliberate decision to take drugs before driving was a very irresponsible attitude as he might cause car accident resulting in injury to any road users and damage to other’s properties.

91.  In a nutshell, he simply put the innocent public at risk.  It can have far reaching consequences.

92.  His car also contained some dangerous drugs as mentioned previously.  The whole purpose of driving that car was to buy some drugs and delivered them to the end users.  That is an aggravating factor.

93.  There was no evidence to suggest that he was speeding at the material time.  I can assume that the traffic was light when he was arrested at 1:45 a.m. on that day.

94.  With all this information in mind, I consider that a sentence of 12 months is appropriate to reflect the gravity of the offence.  Allowing 1/3 discount, it comes down to 8 months.

95.  I also order the defendant to be disqualified from driving all types of vehicle for a period of 2 years.

96.  He is also ordered to attend a driving improvement course under S.72A(1A)  of the Road Traffic Ordinance.

Totality

97.  I also order 4 months from Charge 2 to be served consecutively to Charge 1.

98.  The total sentence for the two charges is 2 years 8 months 20 days.