HKSAR v. WONG CHUN LONG

DCCC 399/2022

[2023] HKDC 442

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 399 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant is convicted on his own plea and agreement to the Summary of Facts for a charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

Facts

2.  At around 11:40 am on 7 January 2022, police spotted the defendant at the driver’s seat, looking very nervous, in a vehicle bearing registration number XS6298, parked outside a place near the lamppost VD7288.  The police officer then approached the defendant, revealed his police identity and demanded the defendant to get off the car. 

3.  Upon body search, nothing illegal was found on him.  However, the police officers later found:-

(a)  a large resealable plastic bag containing 38 resealable plastic bags of 10.9 grammes of ketamine and a large resealable plastic bag containing 9 resealable plastic bags of 1.29 grammes of cocaine inside the pocket of the driver’s seat cushion;

(b)  a total of 4 resealable plastic bags containing 1.12 grammes of ketamine inside the driver’s seat armrest compartment;

(c)  a resealable plastic bag containing a total of 67 resealable plastic bags of 19.6 grammes of ketamine and a resealable plastic bag containing 6 resealable plastic bags containing a total of 60 resealable plastic bags of 9.14 grammes of cocaine inside the gear lever panel.

4.  The defendant was arrested.  Under caution, he claimed that he was unemployed so that he could distribute the “coke” and “K Chai” for others at a daily wage of $2,000.  He admitted those drugs found in the car belonged to him, and begged for a chance. 

5.  At a video-recorded interview conducted by the police on 7 January, under caution, the defendant admitted that:-

(a)  the “coke” and “K Chai” referred to cocaine and ketamine respectively.

(b)  the cocaine would be sold at $300 per packet while the ketamine would be sold at $250 per packet. He had done this job for a month.

(c)  the drugs found inside the car belonged to him, and the sum of $3,710 found at the driver’s door was proceeds from selling the drugs.

6.  Government chemist’s certificate confirmed the narcotic contents of the drugs seized.

Criminal Record

7.  The defendant has one spent previous conviction of theft in year 2009, for which he was fined $1,000.

Mitigation

8.  The defendant is aged 30, married and has a son out of this marriage. His wife and his son are now both in Malaysia. 

9.  The defendant finished his Form 2 education and had received apprentice training in the field of aluminium window frames and finally settled as a cook.  He had previously gone to Australia for working holiday where he met his wife and they married there.  Afterwards, he continued to work as a cook but because of the pandemic, the business was badly hit.  He returned to Hong Kong but the food industry in Hong Kong was also badly hit by the pandemic. 

10.  Defence counsel submitted that due to influence from peers and defendant himself being in poor financial situation then, the defendant had wrongly resorted to this illicit trade.  He now regrets what he has done.  Defence counsel has tendered to court mitigation letters from both the defendant and his father. 

11.  Defence counsel urged this court to give the defendant extra credit for the fact the drugs seized were found in hidden places inside the car, like the driver’s seat cushion, the driver’s seat armrest compartment and the gear lever panel.  It was said that had the accused been uncooperative, the prosecution would have difficulty in proving their case.

12.  Defence counsel also referred this court to the cases of HKSAR v Tong Hon Ko, DCCC 510/2013, as well as HKSAR v Man Kam Shing, DCCC 501/2014, where the court adopted combined approach in sentencing. 

Discussion

13.  Before sentencing, the court has carefully considered all that was advanced on behalf of the defendant, including the 2 mitigation letters submitted and the legal authorities in the area. 

14.  On conviction upon indictment of this charge, the maximum sentence is a fine of $5 million and imprisonment for life.

15.  Trafficking in dangerous drugs is a very serious offence, and in usual circumstances, it is well established that personal background and circumstances is not considered a valid mitigating factor.

16.  The drugs involved in this case is 31.62 grammes of ketamine and 10.43 grammes of cocaine. 

17.  For trafficking 10.43 grammes of cocaine, following the authority of Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, in adopting the guideline in R v Lau Tak Ming [1990] 2 HKLR 370, the appropriate sentencing starting point is 60 months’ imprisonment. 

18.  For trafficking 31.62 grammes of ketamine, following the authority Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the appropriate sentencing starting point is 61 months’ imprisonment.

19.  If all the drugs in this case, ie 42.05 grammes of drugs trafficked, is cocaine, the sentencing starting point would be 89 months’ imprisonment. If all the drugs trafficked in this case is ketamine, the sentencing starting point would be 67 months’ imprisonment.

20.  Under the combined approach and applying the ratio test, the sentencing starting point in this charge should be 72 months’ imprisonment.  This court is persuaded by the defence counsel and finds it most appropriate to adopt the combined approach in calculating the sentencing starting point in this case.

21.  It is well established that as there are more than one type of drugs involved, the same constitutes an aggravating feature in sentencing, for which the sentencing starting point is enhanced.  In this case, the court will enhance the same by 3 months, taking the sentencing starting point to 75 months’ imprisonment.

22.  The defendant has pleaded guilty, which is the most valid mitigating factor.  He is therefore entitled to full one-third sentencing discount. 

23.  It is well established that committing the offence because of financial difficulty is not a valid mitigating factor. 

24.  This court also does not agree to the submission by defence counsel that the defendant should be entitled to further credit by reason that should he not be co-operative the prosecution would have a difficult task in proving the case against him, as the defendant at the time of interception by the police was the driver of the vehicle and all the drugs seized were found in his vicinity, ie seat cushion of the driver’s seat, armrest compartment and gear lever panel.

25.  Accordingly, the defendant is sentenced to 50 months’ imprisonment.