HKSAR v. KWAN CHI LEUNG

DCCC 262/2019

[2021] HKDC 180

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 262 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of trafficking in 3.42 grammes of a crystalline solid containing 3.07 grammes of methamphetamine hydrochloride (“ice”) and 23.34 grammes of a solid containing 14.03 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1]; one charge of attempted to drive without a valid driving licence, contrary to section 42 of the Road Traffic Ordinance[2] and section 159G of the Crimes Ordinance[3] and one charge of using a motor vehicle without third party insurance, contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance[4].

2.  Full particulars of the offences are set out in the facts admitted by the defendant on 27 November 2019. 

3.  In summary at around 9:03 p.m. on 17 December 2018 police officers spotted a private car VS 3858 parked on Sik Kong Wai Road in Tin Shui Wai.  There was nobody on board the car which was causing obstruction to the traffic. 

4.  The police officers feeling suspicious observed the car.  Four minutes later the defendant together with a female approached the car.  The defendant sat in the driver’s seat and the female sat in the front passenger seat.  The defendant turned on the headlights and switched on the engine at which stage the police intercepted the car.

5.  When PC 15743 asked the defendant to take everything out of his pockets the defendant refused and started to run away.  PC 15743 and other police officers stopped the defendant a few meters away at which time the defendant dropped four plastic bags on the ground.       

6.  The plastic bags contained:

(i)  3.14 grammes of a crystalline solid containing 2.79 grammes of ice;

(ii)  0.28 grammes of a crystalline solid containing 0.28 grammes of ice;

(iii)  18.7 grammes of a solid containing 11.30 grammes of cocaine; and

(iv)  4.64 grammes of a solid containing 2.73 grammes of cocaine.

7.  The police also found on the defendant five mobile phones, one electronic scale and $7,348 cash. 

8.  The estimated street value of the ice was $1,742 and the cocaine was $16,736.

9.  The defendant did not have a valid driving licence or third party insurance.  

Mitigation

10.  In passing sentence, I have carefully considered the written and oral submissions of Mr Ching, including that the defendant, who is 46, is a drug addict who helped his cohabitant to deliver dangerous drugs in exchange for being given drugs for free[5].

11.  The defendant pleaded guilty on 27 November 2019 when sentence was adjourned, the defendant having indicated his willingness to offer assistance to the prosecution about the role of his cohabitant[6].

12.  The court is informed that the cohabitant has been charged with trafficking dangerous drugs and is now awaiting trial.  Trial was fixed for 20 January 2021.  The defendant attended court to testify, however, the trial was adjourned.  A new trial date has not yet been fixed.  

13.  Although the defendant is still willing to testify at the trial of his cohabitant he asks the court to sentence him today.  The trial of the cohabitant depends on the evidence of the defendant.  The defendant understands that if he is sentenced today the court cannot give him credit for the assistance he has already given as an assessment of that assistance depends on whether the defendant fulfils his promise to testify at the trial of his cohabitant.   

Guidelines

14.  In HKSAR v Tam Yi Chun the Court of Appeal recast the sentencing guidelines for trafficking in ice[7].  The starting point after trial where the quantity of narcotic is up to 10 grammes is between 3 and 7 years’ imprisonment and where the quantity of narcotic is between 10 grammes and 70 grammes is 7-11 years’ imprisonment.

15.  The courts have equated for sentencing purposes cocaine with heroin[8].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[9].  The starting point after trial where the quantity of narcotic is up to 10 grammes is within the range of 2-5 years’ imprisonment and where the quantity of narcotic is between 10 and 50 grammes sentence falls within the range of 5-8 years. 

Starting point

16.  Adopting the “individual” approach to sentence based on quantity alone the starting point for trafficking in 3.07 grammes of ice would be just less than 4 years and 3 months’ imprisonment and for 14.03 grammes of cocaine would be just less than 5 years and 4 months’ imprisonment. 

17.  Applying what has been referred to as the “absurdity test” a starting point of 9 years and 7 months’ imprisonment is clearly excessive for if all the drugs were ice the starting point based on quantity alone would likely be just less than 7 years and 6 months’ imprisonment. 

18.  I am satisfied that the “combined” approach to sentence is appropriate.  Mr Ching submits that ice should be taken as the “base” drug to calculate the starting point[10].  I agree[11].  Taking ice as the base drug I adopt a starting point of 4 years and 2 months’ imprisonment. 

19.  Mr Ching submits that a starting point of between 5 years and 6 months and 6 years’ imprisonment is appropriate which starting point Mr Ching submits is consistent with both the “conversion test” and the “ratio test” [12]. 

20.  Applying the “conversion test” a sentence of not less than 6 years and 6 months’ imprisonment would be arrived at when converting all the drugs to ice and not between 5 years and 6 months and 6 years’ imprisonment as submitted by Mr Ching.

21.  A sentence of not less than 5 years and 10 months’ imprisonment would be arrived at when converting all the drugs to cocaine.  Similarly, when applying the “ratio test” a sentence of not less than 5 years and 10 months’ imprisonment would also be arrived at and not 5 years and 6 months’ imprisonment as submitted by Mr Ching[13].

22.  Taking all these matters into account to calculate a reasonable and realistic increase to the starting point of 4 years and 2 months’ imprisonment, I increase the starting point by 1 year and 10 months’ imprisonment to 6 years’ imprisonment.

23.  I further enhance the starting point by 3 months to 6 years and 3 months’ imprisonment for the aggravating factor that the trafficking involved two serious dangerous drugs.

24.  In R v Lau Tak Ming the Court of Appeal said that within the suggested bands a sentencing judge may properly take into account previous history of narcotic offences[14]. 

25.  The defendant has one previous conviction for trafficking in dangerous drugs in 2009 when he was sentenced to 4 years and 8 months’ imprisonment.  The defendant also has convictions for possession of dangerous drugs in 2001, 2014, 2015 and 2017. 

26.  I further enhance the starting point by 3 months to 6 years and 6 months’ imprisonment[15].

Own use

27.  The defendant claims that the ice and part of the cocaine was for his own consumption.  The claim that all the ice was for the defendant’s own consumption the proper plea to have entered should have been not guilty to trafficking in ice[16]. 

28.  Mr Ching has particularised the defendant’s daily consumption of ice and cocaine in his written mitigation submission[17].   In support Mr Ching relies on the result of a urine test taken three days after the defendant’s arrest on his admission to Lai Chi Kok Reception Centre[18].  The test was positive for amphetamine but negative for cocaine.

29.  Mr Ching also relies on the defendant’s criminal record for possession of dangerous[19].  As noted earlier the defendant has convictions for possession of dangerous drugs in 2001, 2014, 2015 and 2017 and a   conviction for trafficking in dangerous drugs in 2009.  I note the defendant was also sentenced to the DATC in 2008.    

30.  The prosecution takes a neutral stance and leaves the matter for the court to determine.  As indicated in court I do not accept the mere assertion that all the ice and part of the cocaine was for the defendant’s own consumption.  Mr Ching having taken instructions from the defendant confirms that the defendant does not wish to give evidence in support of his claim that all the ice and part of the cocaine was for his own consumption[20].

31.  Taking into account, inter alia, the urine test result on admission to Lai Chi Kok Reception Centre was negative for cocaine; the defendant was arrested in the street and not at home, the quantity and packaging of the dangerous drugs, I reject the assertion that all the ice and part of the cocaine was for the defendant’s own consumption.  

32.  The urine sample collected on admission to Lai Chi Kok Reception Centre being positive for amphetamine, I am however prepared to accept that a small part of the ice may have been for the defendant’s own consumption. 

33.  In deciding how much weight should be attached to the fact part of the ice may have been for own consumption, I have considered the decision in HKSAR v Wong Suet Hau[21].

34.  In Wong Suet Hau the Court of Appeal said that in most cases the difference will be slight[22].  From the decided cases a discount of between 10-25% from the basic starting point has been held appropriate where a significant proportion of the drugs were for own consumption. 

35.  In HKSAR v Cheung Wai Man the Court of Appeal said that in determining whether there was a significant proportion the sentencing court must have credible and reliable information and material[23]. 

36.  I am not satisfied credible and reliable information and material has been placed before the court to show that a significant proportion of the ice was for the defendant’s own consumption.

37.  Taking into account all the circumstances of the arrest; the latent risk factor and that possession of drugs carries a sentence in any event, I am satisfied that the starting point should be reduced by 3 months to 6 years and 3 months’ imprisonment, which is equivalent to a discount of just over 5% from the notional starting point for trafficking in the ice. 

38.  Giving the defendant full credit for his plea of guilty reduces the sentence to 4 years and 2 months’ imprisonment.

Charges 2 & 3

39.  Driving without a valid driving licence and third party insurance are serious offences. 

40.  Mr Ching informs the court that the defendant passed his driving test in 2012 or 2013.  The defendant having failed to display the “P” plate was required to sit the examination again in order to extend his licence.  The defendant did not however sit for the examination and is therefore  no longer the holder of a valid driving licence[24].

41.  Taking into account that the defendant has no similar convictions for both driving without a valid driving licence and third party insurance, I am satisfied a starting point of 6 weeks’ imprisonment is appropriate for driving without a valid driving licence and 3 months’ imprisonment for using a vehicle without third party insurance.

42.  Giving the defendant full credit for his pleas of guilty reduces the sentence on charge 2 to 4 weeks’ imprisonment and on charge 3 to 2 months’ imprisonment.    

Disqualification

43.  By virtue of section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance unless the court finds special reasons there is mandatory disqualification for using a vehicle without third party insurance of not less than 12 months nor more than 3 years.  There are no special reasons in this case.

44.  I am satisfied that disqualification for a period of 12 months is appropriate.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 12 months. 

45.  The defendant is warned that he will most likely still be disqualified when he is released from prison.  Driving whilst disqualified is a serious offence which attracts immediate imprisonment.

Totality

46.  Concurrent sentences are appropriate for driving without a valid licence and without insurance.  Although the defendant was using the car to deliver drugs the driving offences are separate and distinct from the drug offence for which a consecutive sentence is appropriate. 

47.  I am satisfied a total sentence of 4 years and 3 months imprisonment properly reflects the defendant’s criminality on the three charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[25].   

48.  The defendant is convicted and sentenced as follows:

Charge 1 – 4 years and 2 months’ imprisonment.

Charge 3 – 2 months’ imprisonment with 1 month consecutive to charge 1 and 1 month concurrent.

The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 12 months from today.

Charge 2 – 4 weeks’ imprisonment concurrent to charges 1 & 3.

The total sentence to be served by the defendant is 4 years and 3 months’ imprisonment.