HKSAR v. WONG NOK HIN

DCCC 610/2021

[2022] HKDC 880

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 610 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to the following charges, namely:-

Charge 1

Possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drug Ordinance, Cap 134 (involving 0.40g of cocaine).

Charge 2

Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 (involving 22.7g of ketamine and 11.88g of cocaine).

THE FACTS

2.  The facts admitted by the defendant are as follows:-

(a)  At around 1312 hours on 8 April 2021, PC22956 (PW1)  and SGT2896 intercepted the defendant at Yan Hing Street. PW1 then escorted the defendant to a staircase nearby for a body search;

(b)  The following items were found:-

(i)  A resealable plastic bag containing a net weight of 0.4 grammes of cocaine (Exhibit 3)  underneath his right sleeve;

(ii)  5 keys;

(iii)  A mobile phone; and

(iv)  Cash of HK$520.

(c)  Under caution, the defendant said that the plastic bag of stuff belonged to him;

(d)  The defendant was brought to his residence in Tai Po;

(e)  The following items were found on the table therein:-

(i)  A resealable plastic bag containing a net weight of 8.65 grammes of cocaine (Exhibit 4);

(ii)  A resealable plastic bag containing 8 plastic bags containing a total net weight of 3.23 grammes of cocaine (Exhibit 5);

(iii)  An electronic scale containing traces of cocaine (Exhibit 8); and

(iv)  Two stacks of resealable plastic bags.

(f)  The following items were found inside the drawer of the wardrobe:-

(i)  A black plastic bag containing two resealable plastic bags containing a total net weight of 22.7 grammes of ketamine (Exhibit 6);

(ii)  4 stacks of resealable plastic bags; and

(iii)  Cash of HK$14,500.

(g)  Under caution at the scene, the defendant also said the items belonged to him;

(h)  During the subsequent video-recorded interview, the defendant said that:-

(i)  He bought Exhibit 3 from an unknown male for HK$600 in Tai Po 3 days before the arrest;

(ii)  Exhibit 3 was for his own consumption;

(iii)  He used to consume two bags of cocaine daily;

(iv)  He bought Exhibits 4, 5 and 6 from an unknown male for HK$10,000 in Tai Po about 3 days before the arrest;

(v)  Exhibits 4 and 5 were cocaine and Exhibit 6 was ketamine;

(vi)  He divided Exhibits 4 and 5 into smaller packets (0.4-0.5 grammes per bag);

(vii)  He would sell the drugs to others for HK$600-700 per bag;

(viii)  Exhibit 8 was used for repacking the drugs; and

(ix)  The cash of HK$14,500 was his own savings.

(i)  The total estimated street value of cocaine (Exhibits 4 and 5)  and ketamine (Exhibit 6)  was HK$20,076 and HK$14,593 respectively;

(j)  At all material times:-

(i)  The defendant possessed Exhibit 3 (Charge 1); and

(ii)  The defendant also possessed Exhibits 4, 5 and 6 for the purpose of unlawful trafficking (Charge 2).

BACKGROUND OF THE DEFENDANT AND MITIGATIONS

3.  Mr David Cheung, Counsel for the defendant, prepared a very comprehensive set of mitigations. 

4.  Regarding the background of the defendant, he is 25 years old, single.  He is educated up to Form 2 level.  His last place of employment was with a recycling company in Tai Po until a month before his arrest for the offences in the present case.  He lived alone before his present remand but he used to make monthly contribution of HK$6,000 to his mother.

5.  I note that the defendant has 3 previous convictions (involving 6 charges).  One of his previous convictions was related to possession of dangerous drugs for which he was imposed a probation order of 12 months in 2013.  Whilst his previous record would not make his case more serious or that he would be punished more severely in the present case, he does not have the benefit of mitigation for someone who is a first offender.

6.  The present case involves two different types of narcotics.  Counsel urged the court to adopt the Combined approach when sentencing the defendant. It was stressed that the defendant’s guilty plea and his cooperativeness with the Police should warrant appropriate reduction on sentencing.  Counsel also asked the court to consider that a significant portion of the dangerous drugs under Charge 2 was for self-consumption.  The prosecution expressed that there is no objection and a further 10% reduction would be justified accordingly.

7.  The sentencing guidelines for simple possession of dangerous drug cases can be seen in HKSAR v Mok Cho Tik, CACC 165/2000.  Counsel relied on HKSAR v Leung Ka Ki, [2021] HKDC 1556 and HKSAR v Gomez Mendoza Yesica [2020] HKDC 1556 and submitted that a starting point of 6 months or less should be adopted.  It was further submitted that the sentence in Charge 1 shall be ordered to be served concurrently to the other Trafficking in Dangerous Drugs charge in the present case.

8.  On Charge 2, special credits should be given to Mr Cheung who in the written submissions set out in details the calculations under the various headings of approach for dealing with multiple narcotics which of course also took into account the relevant sentencing guidelines, in particular, citing the authority of HKSAR v Cheung Wai Man [2019] 1 HKLRD 817.  In short, the calculations gave the following figures:-

(a)  Under the Individual Approach: 9 years and 9 months;

(b)  Under the Combined Approach: 5 years and 10 months;

(c)  Under the Ratio Test: 5 years and 9 months; and

(d)  Under the Absurdity Test: 6 years and 10 months.

9.  In light of all the circumstances of the case, it was submitted that a starting point of 5 years and 9 months or less should be adopted.  A further reduction of 10% would give rise to a starting point between 5 years and 5 months and 5 years and 6 months.

10.  Having carefully considered the case and mitigations put forward on behalf of the defendant, I shall pass the following sentences.

11.  For Charge 1, I shall adopt a starting point of 6 months’ imprisonment.  I do not see that it should be enhanced on the basis of the notion of latent risk having regards to all the circumstances of the present case.  This starting point is reduced to 4 months on the guilty plea of the defendant. I do not see that any further reduction is justified. 

12.  For Charge 2, I note that the Combined Approach and the Ratio Test both give a similar and close result.  I also accept that there is a proper basis for further reduction.  Suffice it to say, the defendant had a previous possession of dangerous drugs conviction and now that he is facing a similar charge in Charge 1.  There was certain connection between Charge 1 and Charge 2.  His claim of self-consumption is also accepted by the prosecution. I shall therefore take 5 years and 9 months as the starting point ie 69 months, which is further reduced by 10% and becomes 62.1 months.  This is reduced by 1/3 to reflect the guilty plea ie 41.4.  Based on these calculations, I shall impose a 3 years and 5 months’ imprisonment for Charge 2 on the defendant.  I do not see that any further reduction is justified.  Given the length of this sentence, section 54A(1A)  of the Dangerous Drugs Ordinance Cap 134 becomes applicable. 

13.  I shall also order that both Charge 1 and Charge 2 to be served concurrently.