HKSAR v. WONG WAI KWAN, ALLEN

DCCC 382/2024

[2025] HKDC 1393

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 382 OF 2024

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REASONS FOR SENTENCE

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Charge

1.  There are two defendants (D1 and D2).

2.  D1 pleads guilty to Charge 1 “Possession of a dangerous drug”. He also pleads guilty to Charge 2 “Trafficking in dangerous drugs”.

3.  D2 pleads not guilty to Charge 2.  He is acquitted of that charge after trial.

Facts

4.  On 12 May 2023 at about 9:20 pm, the police stopped a car at a roadblock in Happy Valley.  D2 was the driver; D1 sitting next to him.

5.  When the front passenger window was lowered, a police officer (PW1)  smelt of cannabis from the inside of the car.  The officer then instructed D2 to drive the car to a search area.

6.  D1 acted furtively.  PW1 searched him and found three bags of ketamine trapped between the calf of D1’s leg and his trousers.  They were 1.53g of solid containing 1.31g of ketamine.  The three bags were wrapped in a piece of tissue paper.

7.  The dashboard hood of the car appeared to be loose.  PW1 took off the hood and removed the screen component.  He reached his hand into the cavity and found 8 bags.  They contained a total of 133 smaller bags.

8.  Five of the 133 smaller bags contained Part 1 poison; the other 128 smaller bags contained the dangerous drugs stated in Charge 2.  They were:

•  172.8g of solid containing 1.49g of tetrahydrocannabinol;

•  23.17g of herbal cannabis;

•  28.6g of solid containing 0.08g of psilocin;

•  18.83g of solid containing 15.81g of cocaine;

•  7.48g of solid containing 6.4g of ketamine and 7.47g of solid containing 6.34g of 2-fluorodeschloro-N-ethyl-ketamine (deemed as 12.74g of ketamine in total);

•  45 tablets, 30 capsules and 8.85g of solid containing a total of 16.87g of 3,4-methylenedioxymethamphetamine; 25 tablets containing 0.12g of methamphetamine; 5 capsules containing 0.78g of N, N-dimethylpentylone (deemed as 17.77g of ecstasy in total); and

•  5 pieces of paper containing traces of lysergide.

9.  D1’s DNA was found on some of the plastic bags containing the drugs.

10.  $42,320 were found on D1.

11.  In court, D1 admitted Charge 1 and Charge 2.

Record

12.  D1 has a clear record.

Mitigation

13.  Defence Counsel says D1 had worked in some jobs before he lost his employment during the Covid period.  When he was caught by the police, he was unemployed.

14.  Counsel says D1 was single. His father had cancer and D1 needed money for the old man’s medical expenses.  He thus committed the trafficking offence (Charge 2)  while the ketamine in Charge 1 was for his own consumption.  

15.  Counsel asks the court to impose concurrent sentences.

Sentence

16.  The dangerous drugs in Charge 2 consisted of seven components. In terms of pure narcotics, they were:-

(a)  1.49g of tetrahydrocannabinol;

(b)  23.17g of herbal cannabis;

(c)  0.08g of psilocin;

(d)  traces of lysergide;

(e)  15.81g of cocaine;

(f)  12.74g of ketamine; and

(g)  17.77g of ecstasy.

17.  When it comes to sentencing, components a-d are much less significant due to their quantity and/or potency.  The components of real impact in Charge 2 are: (e)  15.81g of cocaine, (f)  12.74g of ketamine and (g)  17.77g of ecstasy; the total weight of these three significant narcotics is 46.32g.

Absurdity test

18.  If those 46.32g of significant components were all cocaine, the notional starting point would be 92 months’ imprisonment.

Conversion test

19.  If the 12.74g of ketamine and 17.77g of ecstasy were converted to cocaine of equivalent sentence, they would represent about 7.5g and 8g of cocaine respectively.  These two converted amounts plus the actual 15.81g of cocaine make up a total of 31.31g of cocaine.  The notional starting point would be 79 months’ imprisonment.

20.  If the 15.81g of cocaine and 17.77g of ecstasy were converted to ketamine of equivalent sentence, they would represent about 39g and 17.77g of ketamine respectively.  These two converted amounts plus the actual amount of 12.74g of ketamine make up a total of 69.51g of ketamine.  The notional starting point would be 74 months’ imprisonment.

21.  If the 15.81g of cocaine and 12.74g of ketamine were converted to ecstasy of equivalent sentence, they would represent about 39g and 12.74g of ecstasy respectively.  These two converted amounts plus the actual amount of 17.77g of ecstasy make up a total of 69.51g of ecstasy.  The notional starting point would be 74 months’ imprisonment.

Ratio test

22.  15.81g of cocaine, 12.74g of ketamine and 17.77g of ecstasy in those 46.32g of significant components represent 34.1%, 27.5% and 38.4% of the mass respectively.  That would yield a notional starting point of 77 months’ imprisonment.

Individual sentences and totality

23.  The various notional starting points are for guidance to prevent over-sentencing.  The court is not obliged to stick to any one of the calculated figures.

24.  In the present case, apart from the three significant components (cocaine, ketamine and ecstasy), there were also 1.49g of tetrahydrocannabinol, 23.17g of herbal cannabis, 0.08g of psilocin and traces of lysergide. That D1 had so many types of drugs in so many bags for trafficking is an aggravating factor.

25.  Counsel suggests a starting point of 72 months for Charge 2.  That is too low.  I would say 81 months is right after considering all the circumstances.  The sentence after plea would be one of 54 months’ imprisonment.

26.  D1 has another 3 bags of ketamine (1.31g of narcotics)  for his own consumption in Charge 1.  The starting point would be 3 months’ imprisonment.  The sentence after plea is 2 months’ imprisonment.

27.  D1’s possession of the drugs in Charge 1 for his own use and his possessing the drugs in Charge 2 for trafficking are different offences.  But that quantity of ketamine in Charge 1 is relatively small and D1 already has to serve a lengthy sentence for Charge 2.  I would thus order the two terms of imprisonment to run concurrently. D1 is imprisoned for a total of 54 months for both counts.