HKSAR v. WAN CHEUK HAANG

DCCC 1237/2023

[2025] HKDC 81

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1237 OF 2023

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REASONS FOR SENTENCE

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1.  Upon the Defendant’s guilty plead, he is now convicted of the following charges :-

(a)  trafficking in dangerous drugs, namely

(i)  6.48g of cocaine

(ii)  2.57g of ketamine

(b)  driving without a valid driving licence

(c)  using a motor vehicle without third party insurance

(d)  forgery of documents (two number plates of “AA780” )

2.  On 19 May 2023, at around 2120 hours, the Police noticed AA780 was parked outside a hotel in Kwun Tong. It caused traffic congestion. However, the vehicle licence displaced was XE266. The chassis number of the vehicle indicated that the vehicle licence was XE266.

3.  Upon checking the CCTV footage, it was found out that the Defendant drove AA780 and parked it outside the hotel. The Defendant and an unknown male got off the vehicle at 21:30 and entered the hotel together. The unknown male and the Defendant left the hotel at 21:33 and 21:37 respectively.

4.  When they saw the Police were inspecting the vehicle, they left the scene.

5.  On 20 May 2023, upon a car search in the Kwun Tong Police Station, the drugs as stated in the charge one was found.

Police investigation

6.  The car owner of AA780 confirmed that he had never lent his car nor the number plates of AA780 to anyone. He had received several traffic summons for violating regulations which he did not commit.

7.  A Mr Poon, the owner of XE266 confirmed that he had lent XE266 to his friend in February 2023, but his friend was out of reach and Mr Poon reported this matter to the Police.

8.  The estimate street value:-

(a)  cocaine was about $1,295

(b)  ketamine was about $7,160

9.  The Defendant was arrested on 5 June 2023. In was confirmed by the Transport Department that the Defendant did not have a valid driving licence. As such, he was not covered by third party insurance when he was driving the vehicle.

Criminal record

10.  The Defendant has 8 conviction records for 4 court appearances. In 2019, he has one conviction record of trafficking in dangerous drugs and was sentenced to 32 months’ imprisonment.

11.  Other offences were burglary, theft, unlawful possession of dutiable goods and one count of possession of dangerous drugs.

Background

12.  The Defendant is 24 years old, single and lives with his mother prior to the present arrest. He dropped out from school and started his apprenticeship in a hair salon in 2021. He lost his job during the period of COVID-19 when the salon closed down its business.

13.  The Defendant started to take cocaine in 2019. When his drug supplier knew that the Defendant was unemployed, he was asked to work for his drug supplier shortly before the offence.

14.  His drug supplier arranged a vehicle for the Defendant to drive. The Defendant was aware that the registration number was different from the plate. Nonetheless, the Defendant continued to drive AA780 to collect his deliveries in Kwun Tong on that day.

15.  The Defence asked for a fine in the driving offences.

16.  In his letter to this Court, the Defendant said that he is remorseful. His mother is also in Court today to support him.

Sentence

17.  As to charge one, there are sentencing guidelines for trafficking in cocaine and ketamine.

18.  According to the sentencing guideline in R v Lau Tak Ming [1990] 2 HKLR 370 and AG v Rojas [1994] 1 HKC 342 9 (heroin tariff also applicable to cocaine), for a narcotic content of 6.48g of cocaine, it attracts a starting point of 3 years and 11 months imprisonment (47 months).

19.  As to a narcotic content of 2.57g of ketamine, according to the sentencing guideline in S of J v Hii Siew Cheng [2009] 1 HKLRD 1, it attracts a starting point of 2 years and 4 months imprisonment (28 months).

20.  The Defence accepted to take the combine approach in sentencing. In fact, there is a 7 steps methodology in calculating the starting point as stated in the judgement of HKSAR v Islam S M Majharul [2020] 3 HKLRD 146.

21.  It is further accepted that cocaine should be used as the base drug in calculating the 3 tests and the results are as follows :-

(a)  Absurdity test: with all the narcotics converted to the most potent drug (cocaine), the sentence is capped at 56 months.

(b)  Conversion test: 52 months.

(c)  Ration test: 53 months.

22.  The Defence said that the role of the Defendant was a courier who delivered/ collected the drugs to/from others.  That placed him under the lowest rank in the trafficking hierarchy.

23.  As such, I take 3 years and 11 months (47 months)  as the starting point and increased the sentence by 5 months to take into account of the quantity of ketamine to arrive at a sentence of 52 months (47 + 5).

Aggravating factor

24.  The Defence accepted that there is aggravating factor in the present case as there were 2 types of drugs involved. As said in the case of HKSAR v Choy Wing Sing CACC 252/2021 at paragraph 6 that:

(a)  Trafficking involved 2 drugs, which would have catered for a wider market;

(b)  Ketamine is commonly used with another drug to prolong its effect;

(c)  The drugs were contained in packets for ready distribution to a larger number of users.

25.  In such circumstances, a 2 months’ enhancement of sentence is warranted. The sentence is by now arriving at 54 months (52 + 2).

26.  The Defendant is entitled to ¹/₃ discount, the sentence comes down to 36 months.

27.  I now come to the driving offences:-

· Charge 2 - Driving without a valid license – the maximum sentence for a first conviction is a fine at level 2 and 3 months’ imprisonment.

· Charge3 – driving without third party insurance – the maximum sentence is 12 months’ imprisonment plus a period of disqualification of not less than 12 months and not more than 3 years.

· Charge 4 – forgery of documents (two number plates of AA780)  – maximum sentence is 3 years.

28.  The Defence asked for a fine in respect of all the 3 driving charges. I considered that this is wrong in sentencing principle as the defendant used the car for trafficking dangerous drugs which is a very serious offence and I also view this as an aggravating factor.[1]

29.  He simply parked the car in a main road in a busy district to block the traffic, at the expense of the other road users to his own convenience.

30.  As to charge 2, the Defendant never obtained a driving licence, he was not allowed to drive in the first place.  His driving manner was also poor as he disregard the road traffic conditions/road users at the material time.

31.  As to charge 3 (driving without 3^rd party insurance), it was stated in the judgment of R v Lui Wing Han [1997] HKCU 224 that:

“driving while disqualified and hence, without third party insurance , is a very serious offence as other innocent road users who are injured in any traffic accident may be left without any compensation.”

32.  As said in HKSAR v Muhammad Waqa[2] that these 2 offences are serious in nature.

33.  In such circumstances, I consider that:-

(a)  Charge 2 - a starting point for 6 weeks for charge 2 is appropriate, reduce to 4 weeks after 1/3 discount.

(b)  Charge 3 - a starting point of 6 months, reduce to 4 months after ¹/₃ discount.

34.  The Defence accepted that there is no special reason for not imposing a disqualification order. I impose a disqualification order for a period of 2 years that the Defendant is not allowed to drive any vehicle or to hold a driving licence. When he breaches this order, he is likely to face further prosecution.

Charge 4 (forgery of document)

35.  I notice from the Transport Department’s document that XE266 was purchased in February and registered in February 2023, but the car owner lent it to a Mr Cheung in the same month. Be that as it may, it showed that the syndicate arranged the vehicle for drug trafficking was well-planned. The Defendant is aware that the number plate AA788 was different from the registration number (XE 266)  as appeared on the vehicle licence.

36.  He knew such purpose was to cover the truth “identity” of the vehicle, to reduce his risk of being arrest and to continue to use this vehicle for trafficking dangerous drugs.

37.  As such, I consider that a starting point of 15 months is appropriate, given ¹/₃ discount, it comes down to 10 months.

Totality

38.  I order the sentence of Charge 2 to 4 be run concurrently. A total sentence of 10 months, out of which, 5 months to run consecutively to Charge 1.

39.  The total sentence is 3 years and 5 months (3 years + 5 months).

40.  The Defendant is ordered to serve a period of 3 years and 5 months’ imprisonment.