HKSAR v. WONG SIU HEI

DCCC 304/2025

[2026] HKDC 1321

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 304 OF 2025

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to Charge 1, i.e. trafficking in dangerous drugs, namely 80.55 grammes of a solid containing 66.2 grammes of ketamine and 4.91 grammes of a solid containing 3.8 grammes of cocaine. Charge 2, i.e. possession of Part I poison, has been put on Court’s file upon conviction of Charge 1.

2.  At around 5:25 pm on 22 June 2024, the Defendant was found by a police officer on police motorcycle patrol to be driving a motor vehicle bearing the registration mark XN8220 (the “Vehicle”) on the left first lane.  As the Defendant was looking at his mobile phone while driving, he was intercepted by the police officer.

3.  The Defendant stopped the Vehicle at a bus stop at Sau Mau Ping Upper Bus Terminus (“the Location”). Upon enquiries with the Defendant, the police officer found the Defendant to be suspicious and a search was conducted on the Vehicle.

4.  Upon preliminary search, police found multiple transparent plastic bags each containing white powder in the glove compartment of the front passenger seat. Police officers immediately detained the Defendant and called for backup.

5.  Uniform police officers arrived at the Location at a later stage, and a thorough search of the Vehicle was conducted.  The following items were found in the armrest compartment of the driver’s seat:-

(a) A plastic bag with brown, red and black stripes containing:

(i) 1 re-sealable plastic bag containing 6 plastic bags with a total of 5.96 grammes of a solid containing 4.89 grammes of ketamine;

(ii) 1 re-sealable plastic bag containing 7 plastic bags with a total of 4.86 grammes of a solid containing 4.01 grammes of ketamine;

(iii) 1 re-sealable plastic bag containing 7 plastic bags with a total of 4.69 grammes of a solid containing 3.86 grammes of ketamine;

(iv) 1 re-sealable plastic bag containing 29 re-sealable plastic bags with a total of 4.27 grammes of a solid containing 3.31 grammes of cocaine;

(v) 1 re-sealable plastic bag containing 3 plastic bags with a total of 0.50 grammes of a solid containing 0.38 grammes of cocaine;

(vi) 1 re-sealable plastic bag containing 1 plastic bag with a total of 0.14 grammes of a solid containing 0.11 grammes of cocaine; and

(vii) 1 tissue paper containing 1 re-sealable plastic bag with a total of 0.54 grammes of a solid containing 0.44 grammes of ketamine.

6.  Upon search of the glove compartment of the front passenger seat, the following items were found: -

(a) 1 re-sealable plastic bag containing 20 plastic bags with a total of 19.3 grammes of a solid containing 15.9 grammes of ketamine;

(b) 1 re-sealable plastic bag containing:

(i) 1 re-sealable plastic bag containing 20 plastic bags with a total of 19.1 grammes of a solid containing 15.7 grammes of ketamine;

(ii) 1 re-sealable plastic bag containing 20 plastic bags with a total of 13.1 grammes of a solid containing 10.7 grammes of ketamine; and

(iii) 1 re-sealable plastic bag containing 20 plastic bags with a total of 13.0 grammes of a solid containing 10.7 grammes of ketamine.

7.  A cross-strap shoulder bag containing cash of HK$14,136, and 3 mobile phones were also found on the front passenger seat of the Vehicle.

8.  The Defendant was arrested. Under caution, he claimed that he bought the ketamine and cocaine for own consumption.

9.  The weight and estimated street value of the ketamine and cocaine seized in this case were:

(a) 66.2 grammes of ketamine with street value of approximately $31,776; and

(b) 3.80 grammes of cocaine with street value of approximately $3,256.

DEFENDANT’S ANTECEDENT STATEMENT AND MITIGATION

10.  The Defendant is 25 years old and lived with his parents at the time of the offence.  He has 1 previous conviction of 2 charges including trafficking in dangerous drugs and driving without a valid driving licence in 2023, for which he was sentenced to 37 months’ imprisonment. 

11.  Defence submitted that the Defendant’s entire savings were lost due to online dating scam by the end of 2023. As he was eager to find means to recoup his losses, so as to use the money for downpayment on a flat for his parents. It is submitted that the Defendant had permission to consume a small and unspecified amount of cocaine and ketamine, and that he had been a drug addict of both drugs since 2018.  It was claimed that he was on his way to deliver the dangerous drugs for others, and that he was cooperative during the enquiries.

SENTENCING GUIDELINES

12.  Charge 1 includes 2 different types of dangerous drugs, ie cocaine and ketamine.  In accordance with sentencing principles enunciated in the authorities, the Court must consider the individual approach and the combined approach while exercising its discretion in adopting the appropriate starting point (HKSAR v Yip Wai Yin [2004] 3 HKC 367)

13.  Under the individual approach, the starting points for cocaine and ketamine must be calculated separately in accordance with the corresponding sentencing guidelines, and thereafter for the resulting imprisonment terms to be added together.  Under the sentencing guideline for cocaine, the starting points for up to 10g is 2 to 5 years, 10g to 50g is 5 to 8 years, and 50 to 200g is 8 to 12 years. According to the said sentencing guideline, the starting point for 3.8 grammes of cocaine is 37.68 months.

14.  Under the sentencing guideline for ketamine, the starting points for 1 to 10g is 2 to 4 years, 10g to 50g is 4 to 6 years, 50 to 300g is 6 to 9 years, and 300g to 600 g is 9 to 12 years.  According to the said sentencing guideline, the starting point for 66.2 grammes of ketamine is 74.33 months.

15.  Under the individual approach, by adding 37.68 and 74.33 months, the resulting sentence would arrive at 109.01 months.

16.  The Court must then proceed to the ratio test.  As the total amount of cocaine and ketamine arrives at 70 g, the starting point for 70 g of cocaine is 102.4 months, and for 70 g of ketamine is 74.88 months.  Since cocaine and ketamine contribute to 0.05 and 0.95 of the total amount of drugs respectively, the sentence for cocaine should be 5.12 months, whereas that of ketamine should be 71.14 months.  The total starting point by adding these 2 would arrive at 76.26 months.

17.  The Court decides to adopt the combined approach, and in order to reflect the presence of cocaine, to enhance the starting point for ketamine by slightly less than 2 months, to arrive at 78 months’ imprisonment.

18.  I have then proceeded to consider the Defendant’s role as a courier of dangerous drugs upon another’s instructions.  The mode of transport had been arranged by him, i.e. a motor vehicle borrowed from another.

19.  According to HKSAR v Islam SM Majharul [2020] 3 HKLRD 146, the Court must further consider the presence of aggravating factors.  As Charge 1 involves 2 types of dangerous drugs, including both hard and soft drugs, the scope of market reachable becomes much wider, and thereby increasing the culpability of the present offence.  I shall therefore further enhance the starting point by 3 months to 81 months’ imprisonment.

SENTENCING CONSIDERATIONS

Claim of Partial Consumption

20.  The Defendant in his mitigation claims that he is a drug addict of cocaine and ketamine since 2018, and that he was promised a “small amount of cocaine and ketamine for consumption (quantity not specified)” “in order to satisfy the Defendant’s craving.”  There was no indication from the Defence as to the pattern and quantity of consumption.

21.  The Defendant’s claim that he is a drug user is partially supported by the urine test report from the Correctional Services Department, which indicated presence of cocaine in the urine sample collected on 25 June 2024, i.e. 3 days after his arrest. 

22.  It is one matter for a Defendant to be a drug user, having considered the presence of cocaine in his urine 3 days after arrest, and another matter for him to have with him part of the drugs seized for his consumption as opposed to trafficking.  I note that the Defendant did not claim that the cocaine in his urine sample originated from the same batch of dangerous drugs in question.  

23.  In HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, the Court of Appeal stated that:

“… in drugs cases, where traffickers are renowned for their attempts to circumvent the rigour of the courts’ stern approach to drug offences, sentencers will need to examine with particular care, any assertion by a proved or self-confessed trafficker, that part of his haul was for his own consumption; they will be slow to accept a bare assertion unsupported by confirmatory evidence; they will remember that true cases of this kind, where the purpose of possession is mixed, will almost always involve small quantities; and they will have to bear in mind that the quantity accepted, as having been intended for self-consumption, carries a sentence in any event, and that this might itself be aggravated for the latent risk factor, so that in most true “mixed” cases, the difference in sentence, if any, will be slight.”

24.  The case of Wong Suet Hau also stated that it is only when “a significant proportion of the drugs was intended for the consumption of the defendant and not for trafficking, and where it is apparent from the circumstances as a whole that the contention, if true, may well make a difference to sentence, the sentencing court should address the issue.”

25.  I note that the quantity of cocaine and ketamine suggested by the Defence as being for self-consumption is “small” and “quantity not specified”. The total amount of cocaine and ketamine amounted to 70g.  The suggested amount cannot be considered as “a significant proportion” of the drugs seized. Bearing in mind that even assuming the claim as true, the aggravating latent risk feature of small individual packets of drugs being brought inside a car on the move will negate the difference in sentence.  I am therefore of the view that the situation in which the Court of Appeal in Wong Suet Hau stated as necessitating the dealing of the self-consumption in sentencing is not present in this case.

26.  Even if I am wrong, and that I have to deal with the issue, I shall proceed to deal with the considerations stated in Wong Suet Hau, which the Court of Appeal states that the sentencing court would usually be able to determine without a Newton hearing.

27.  The factors to be considered include:

(a) the quantity of the drugs, and if known, their value;

(b) the general circumstances, including how the drugs are wrapped, and how many wraps or packets are found;

(c) where the drugs have been discovered, whether at a residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place;

(d) the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;

(e) whether the defendant is an addict, or is otherwise accepted to have been a habitual user of the drug in question;

(f) the explanation given by the defendant following arrest;

(g) the defendant’s general means and his ability to pay for his drugs, otherwise than by trafficking in them; and

(h) the defendant’s criminal record, if any, in relation to previous drug offences.

28.  I have considered the following:

(a) the narcotic content of the drugs being 66.2 grammes of ketamine and 3.8 grammes of cocaine. The street value of the drugs amounted to around $35,000;

(b) The drugs were contained in many packets with relatively small quantities in each pack;

(c) It was not claimed by the Defendant that any specific package was for his own consumption;

(d) Consumption paraphernalia were not found;

(e) Even though the car was not a public place, it was on the move in the streets, and the Defendant was delivering drugs;

(f) The Defendant claims that he was an addict since 2018 of both kinds of drugs, and that the urine sample taken from the Defendant 3 days after his arrest contained cocaine, whereas ketamine was not tested;

(g) The Defendant stated under caution that he had bought the drugs seized for his own consumption, which is inconsistent with his mitigation that only a small unspecified portion was for his consumption, and that the drugs were delivered under instructions;

(h) There is no information on the consumption pattern and quantity except a bare assertion of partial consumption;

(i) The Defendant claims in mitigation that he had been taking up ‘odd jobs’ in construction and transportation fields as labourer and casual worker, earning $700 to $800 per day when jobs were available. On the generous side, assuming he could secure odd jobs 25 days a month, he would be able to earn $20,000 a month;

(j) The Defendant is single and without child, and lived with his parents who were still working, and not having made contributions to household expenses;

(k) Despite his claim that he had been an addict from 2018 to 2024, the Defendant’s similar conviction record was only that of trafficking and not possession of dangerous drugs. The Court had already taken into account that he had been sentenced by the Court for 37 months for the said conviction, and was released from prison on 13^th June 2023.

29.  After considering the above, I am of the view that the Defendant’s claim is so incredulous that it can be rejected without the need to conduct a Newton hearing.  The said claim is nothing but a bare assertion, with no particulars on consumption pattern and cost.  The claim that an unspecified quantity can be taken from the drugs being delivered to satisfy the Defendant’s craving defies logic, as the person giving the instructions would not allow the courier to take whatever amount of drugs desired.  A logical way would be to allow a specific amount as part of the reward, yet that is the exact opposite of the Defendant’s version.

30.  I also note that the Defendant lied under caution that he had bought the drugs seized, and that they were all for his own consumption.  He was obviously intent on lowering his culpability when he was being caught red-handed.  In his mitigation, he had apparently realized that the stance of possession for self-consumption will not be accepted, and had tried to modify it, still with the same intention.  The 2 versions are markedly inconsistent, and considering the analysis above on the lack of logic, I therefore reject the Defendant’s claim in mitigation as a calculated move in order to receive a shorter imprisonment term.  I shall refuse to reduce the Defendant’s sentence for the ground of partial self-consumption.

31.  I have considered the Defendant’s guilty plea and his criminal record with 1 record of the same offence, and all mitigation advanced on his behalf. 

32.  His previous conviction of the same offence on 19 January 2023 constitutes an aggravating factor in this case.  He was released from the previous imprisonment term on 13^th June 2023, and yet went on to commit the present offence on 22 June 2024.  It is obvious that he had not learnt any lesson from the past imprisonment term, and that a heavier sentence should be imposed in this case in order to have a sufficiently deterrent effect.  I will enhance the starting point by 3 months, making it 7 years imprisonment.  Due to the Defendant’s guilty plea, I will reduce it by one third, to a sentence of 84 months’ imprisonment.  I do not consider that there are any circumstances for further discount of sentence.  The Defendant is therefore sentenced to 4 years 8 months’ imprisonment.